شركة المخازن العمومية (( أجيليتي )) ...... 2

[بلاحدود]

هلا بمعشي الجن!!


أنا عندي فوق 60 ألف بشوي.. والله لو وزعوا نص دينار ما يغطي خسارتي..
السهم تكلفته علي قريب الدينار!!

طبعا عندي أسهم ثانية غاص فيهم.. منها بيان و أدنك.. وغيرها..

أدنك بروحها عندي قريب النص مليون.. طبعا لا توزيعة ولا ارباح ولا اخبار طيبة!! بس الفلوس مجمدة من ثلاث أو اربع سنين!! حالنا من حال حميد الشيبة مع هالسهم!!

عندي حساب الخليج للتداول بس ما نزلوا الأرباح في حسابي.. هل لازم أطلب منهم أم إهي تنزل أوتوماتيكيا؟؟ "توماتيكوو!!

 

[هوال]

بلا حدود الله يرزقك من واسع فضلة
والصبر اخوي الصبر

اما حياتن كلها عز في عز.........ولامماتن في سبيل المعزة

 

[رجل مبتدئ]

محامو «أجيليتي»: الادعاء صعد الاتهامات والقضية تتعلق بالعقد وليس بالأداء
عمرو الاشموني

10




مع استمرار النزاع القانوني من قبل قاضي المحكمة الفدرالية الاميركية حول ما اذا كان يجب تغريم المورد الرئيس لوحدات الجيش الاميركي، قالت الشركة الاميركية التابعة لشركة المخازن العمومية يوم الجمعة الفائتة، ان قضية الجيش الأميركي تتعلق بالعقد لا الأداء.

وفقا لـ «بلومبرج» اضاف المحامي توم بيفير في جلسة الاستماع، ان شركة أجيليتي القابضة لخدمات الدفاع، فقدت موظفين وعائدات منذ ان وجهت محكمة اتلانتا اتهامات للشركة الام «شركة المخازن العمومية» في نوفمبر، بالاحتيال على الحكومة الاميركية بمبلغ لا يقل عن 68 مليوناً، مقابل عملها مع القوات الاميركية العاملة في الكويت والعراق والأردن.

وقال بيفير «ان الشركة قد توسعت، ولكن سنكون شركة ميتة». ولم يحدد كم من الإيرادات التي خسرتها الشركة أو عدد موظفي الشركة الذين اريقوا. لذا حث القاضي على إصدار أمر النيابة العامة لتسريع عملية البحث في هذا الشأن.

وسعت المخازن العمومية لعرقلة الاتهامات الموجهة اليها، قائلة ان المدعين من النيابة العامة فشلوا في خدمة الشركة بشكل صحيح. وان النيابة العامة الفدرالية قامت بتصعيد خطابهم ضد الشركة الكويتية، في الوقت الذي سعت الاخيرة للسير قدما في المفاوضات للوصول لتسوية ممكنة.

وكان المدعي العام قد وصف الشركة بانها «هاربة من وجه العدالة» في وقت سابق من الاسبوع الفائت، الا انه يوم الجمعة قال المدعي ريتشارد ريد القضية عبارة عن «تربُح من الحرب».

فيما قالت مدعي عام آخر، باربرا نيلان، ان الشركة تلعب لعبة معقدة «الحق بي اذا امكنك»، وفي هذه الاثناء حاول محامو الشركة تصوير القضية على انها نزاع حول العقد وليس قضية جنائية. وأضاف المحامي بيفير «انها قضية تتعلق بالعقد، ولا تتعلق بالاداء. حيث تم تسليم الأغذية إلى العميل بشكل مطابق بنسبة 99.6 في المئة للجدول الزمني» وبين. «انها ليست قضية حول ما إذا كانت الأسعار عادلة ام لا».

فيما قال الادعاء ان الشركة قامت بالتلاعب في صيغة التمويل للاحتيال على الحكومة الاميركية بمبلغ لا يقل عن 68 مليوناً، على الرغم من ان النيابة العامة اوضحت أن هذا الرقم يمكن أن ينمو والتحقيق لا يزال مستمرا. واشار الى ان النيابة العامة ركزت في البداية على الشركات الكويتية فقط، الا انها بعد ذلك وسعت التهم في ابريل لتشمل شركتان اميركيتان تابعتان.

وقامت ان المرافعات القضائية باحباط كلا الجانبين، وقال أعضاء النيابة العامة يوم الجمعة الفائتة انه من المرجح ان الحكومة لن تجدد عقدها مع الشركة، والتي تلقت أكثر من 8.5 بلايين دولار في أموال دافعي الضرائب منذ توقيع اول العقود في 2003.

لكن نيلن قالت ان الشركة الكويتية ستواصل تزويد الجيش بالمواد الغذائية حتى ديسمبر على الرغم من المخاوف التي أعلنتها وزارة العدل. واضافت «نحن لا نحب ذلك» و«نشعر باننا لانزال ندفع مبالغ اضافية».





باذن الله خبر ايجابي

 

[رجل مبتدئ]

الادعاء الأميركي: استمرار اتهام أجيليتي



رزان عدنان
قالت مساعدة المدعي العام الاميركي باربرا نيلان للقاضي الاميركي آلان بيفرمان امس في جلسة استماع في اتلانتا ان شركة اجيليتي لا تزال مستمرة باحتيالها على الحكومة الاميركية في عقود توريد اغذية للجيش الاميركي.
واضافت قائلة: «نحن متأكدون من ذلك بقوة ولدينا دليلنا على ان عملية الاحتيال مستمرة»، وكانت «أجيليتي» اتهمت بالاحتيال على الحكومة الاميركية بعقود مليارية لتوريد الاغذية الى الجيوش الاميركية الموجودة في الكويت والعراق، واعتبرت نيلان ان الشركة الكويتية استغلت الحرب على العراق، وافادت ان العقد الاميركي مع اجيليتي سار حتى ديسمبر.
وذكر محامي الدفاع توم بيفر عن شركة اجيليتي دي جي اس، وهي وحدة تابعة للشركة الام، خلال الجلسة ان القضية تدور حول خلاف على العقد ما اذا كان على اجيليتي ان تحافظ على الخصومات التي تلقتها من البائعين ام عليها اعادة دفعها للحكومة الاميركية.


المصدر جريدة القبس

 

[بلاحدود]

لا حول ولا قوة إلا بالله..

شكله رايح 180 مثل ما قال المحلل محمد الحبيب..

شنو تحليل السهم بعد تداول اليوم؟

اعتقد دعم 360 كان دعم؟ شنو بقى؟

 

[w!CkEd]

رواسي حجي ... العوض على الله.

 

[عاشق الجنة]

عاجا نبي تحليل لاجيليتي

 

[عاشق الجنة]

عاجل نبي تحليل لاجيليتي

 

[كدلك]

قصدك نغيليتي
كسر 335 ليومين يودينا 300 فلس
ولايزال السهم بترند هاااابط

 

[bader__7]

لا حول ولا قوة إلا بالله.

 

[رجل مبتدئ]

USA vs PWC Agility (Link to Indictment)

الوثيقه من المحكمه يا ليت واحد يعطينا الزبده
تقبلو تحياتي
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA : CRIMINAL INDICTMENT
v. :
: NO. 1:09-CR-0490-AJB-TWT
THE PUBLIC WAREHOUSING :
COMPANY, K.S.C., a/k/a Agility; : First Superseding
AGILITY DGS HOLDINGS, INC., :
f/k/a Agility Defense & :
Government Services, Inc., :
f/k/a PWC Logistics Services, Inc.; :
AGILITY DGS LOGISTICS SERVICES :
COMPANY, K.S.C.(c), d/b/a and f/k/a :
PWC Logistics Services K.S.C.(c); :
Defendants.
UNITED STATES’ BRIEF IN OPPOSITION TO DEFENDANT PUBLIC
WAREHOUSING COMPANY K.S.C.,a/k/a AGILITY’S AMENDED
MOTION TO QUASH SERVICE OF PROCESS ON INDICTMENT
Now comes the United States, by its attorneys, F. Gentry Shelnutt, Acting
United States Attorney for the Northern District of Georgia with respect to this matter,
Barbara E. Nelan, Assistant United States Attorney, and Richard E. Reed, Special
Assistant United States Attorney, and hereby submit this brief in opposition to
defendant Public Warehousing Company K.S.C., a/k/a Agility’s (“PWC/Agility”)
Amended Motion to Quash Service of Process on the indictment and superseding
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 1 of 39
1 PWC/Agility original motion- Doc. 25; PWC/Agility amended motion-
Doc. 54; PWC/Agility brief in support of motion- Doc. 51.
2 During the relevant period of time, PWC/Agility by and through
subsidiaries, had numerous contract with the United States in addition to the three
prime vendor contracts that are the subject of the present case.
2
indictment.1 The defendant’s motion, as amended, should not even be considered by
this Court, but, if it is, it should be denied as the defendant has been properly served
pursuant to Fed. R. Crim P. 4.
Defendant PWC/Agility has received over $8.5 billion from the United States
pursuant to three Prime Vendor contracts2 issued by the Department of Defense. It
frequently has taken advantage of courts of the United States to sue agencies of the
United States and has regular, almost daily, contacts with the United States and has for
the last six years. On November 17, 2009, after it was indicted and charged with
conspiring to defraud the United States and engaging in multiple fraudulent schemes
in connection with its overcharging for providing troop support services to the United
States during Operation Iraqi Freedom, in a press release that it issued worldwide, it
denied the charges and asserted that it looked forward to its day in this court. Now that
it is faced with that prospect, it has retreated to the safe haven of Kuwait. Defendant
PWC/Agility contemptuously contends that it is not subject to the laws or courts of the
United States.
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 2 of 39
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PWC/Agility is a fugitive from American justice, and this Court should not
entertain its motion to quash. A corporation, such as PWC/Agility, who has amassed
sizeable profits from contracting with and overcharging the United States during
Operation Iraqi Freedom and who seeks to invoke the processes of the United States
law when it suits PWC/Agility while flouting those very same laws, simply is not
entitled to call upon the resources of this Court for determination of its motion.
I. BACKGROUND
In March 2003, the United States and its Coalition partners launched Operation
Iraqi Freedom, following in the tank tracks of Operation Desert Storm. The troops in
Operation Iraqi Freedom were supported by, among others, the Defense Logistics
Agency (DLA), a logistics combat support agency within the Department of Defense,
and the Defense Supply Center Philadelphia (DSCP), the troop support center agency
of the DLA. DSCP is the center for managing four major commodities: medical
material, subsistence/garrison feeding, construction and equipment, and clothing and
textiles. DSCP also is responsible for managing DOD’s prime vendor contracts within
those commodities, including prime vendor contracts for subsistence/garrison feeding
for military personnel located in the Middle East.
As part of its mission of supporting troops worldwide, in particular in the Middle
East, DSCP issued solicitations for the acquisition of foodstuffs and non-food items
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 3 of 39
4
for various parts of the Middle East, including Iraq, Kuwait, and Jordan. These
solicitations sought proposals to provide foodstuffs and non-food items pursuant to
prime vendor contracts.
On May 10, 2002, DSCP issued Solicitation SPO300-02-R-4003 to establish
contracts with prime vendors to provide food and non-food products to the military and
other authorized customers of the DLA in three Overseas European Zones, including
Zone III-the Middle East. This solicitation was for a one-year base period, up to four
one-year options, and had an estimated total acquisition value of $111,959,520.
Defendant PWC/Agility submitted a proposal and on May 28, 2003, DSCP
issued a notice of award to defendant PWC awarding it Contract SPO300-03-D-3061,
which was known as Prime Vendor I (PV-I), to provide full-line food and non-food
distribution in Zone III (Kuwait and Qatar). On June 27, 2003, DSCP issued
Modification P00001 to PV-I, creating an Iraqi Deployment Zone and providing that
defendant PWC would also provide food and non-food items to the military in Iraq.
This Modification provided that the maximum total acquisition value limit of PV-I
could increase by as much as 1200% over the estimated contract dollar value.
Thereafter, while DSCP was in the process of soliciting proposals for a new
prime vendor contract in the Middle East, on February 16, 2005, defendant
PWC/Agility was awarded Contract SPM300-05-D-3119 (also known as Modification
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 4 of 39
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P00036 to PV-I). This “Bridge Contract” provided for continued prime vendor
operation under the terms and conditions of PV-I through December 15, 2005.
On September 3, 2004, DSCP issued Solicitation SPM300-04-R-0323 to
establish a prime vendor contract for the acquisition of food and non-food items for the
military and other authorized customers in several Middle Eastern Zones, including
Zone I comprised of Iraq, Kuwait, and Jordan.
On November 16, 2004, defendant PWC provided its initial proposal and on July
7, 2005, DSCP awarded Contract SPM300-05-D-3128, known as Prime Vendor II
(PV-II), to PWC to provide food and non-food items to the military and other
authorized customers in Zone I. The estimated value of the award over the life of the
contract with options was $4,668,890,200.
Over the duration of the three prime vendor contracts defendant PWC/Agility
has been paid at least the following approximate amounts: PV-I- $934,000,000;
Bridge- $1 Billion; PV-II- $6.6 Billion.
All of the prime vendor solicitations were issued from the United States, the
offerors were required to submit their proposals to DSCP in the United States, and the
contracts awarded to “Prime Vendors” pursuant to the solicitations were executed in
the United States. In addition, the prime vendor contracts contained a “Buy American”
provision that required, with some exceptions, that all foodstuffs provided pursuant to
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 5 of 39
3 As demonstrated in Government Exhibit A, PWC/Agility used the trade
name of “PWC Logistics” in the performance of the prime vendor contracts.
6
the prime vendor contracts come from United States’ vendors and that all foodstuffs
provided be shipped on U.S. flagged vessels.
Apart from regular, frequent, often every-day, contacts that defendant
PWC/Agility had with DSCP and with vendors here in the United States, the defendant
had a staffed office in Winchester, Virginia. The office was opened in the spring of
2004, although a formal lease was not executed until the fall of 2004. While the lease
agreement continued until the fall of 2008, the office was abandoned in the spring of
2008, just after defendant PWC received the initial subpoena from the grand jury that
ultimately indicted it . See Government Exhibit. A3 and B.
PWC/Agility knew about the impending original indictment as early as October
23, 2009. On that day, in an e-mail communication, counsel for the United States
asked PWC/Agility counsel to "identify a PWC representative who will accept a
summons with respect to an initial appearance /arraignment." On October 30, PWC's
counsel responded in relevant part that: "I spoke with Sam McCahon [PWC internal
counsel] regarding the availability of someone to receive a summons on behalf of
PWC. He noted that PWC's senior staff travels a great deal and often on short notice,
so it is it [sic] not always predictable as to who will be where at a particular time. He
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 6 of 39
4 See Exhibit K to PWC/Agility Brief.
7
did note that if you can provide perhaps as little as a week's notice, he should be able
to specify someone for your purposes, if not himself."
Prior to its indictment, PWC/Agility had accepted service of both civil and grand
jury subpoenas through one of its United States based counsel. On November 9, 2009,
a grand jury sitting in this District issued an indictment against the defendant. That
indictment was unsealed on November 16, 2009. After the indictment was unsealed,
early Monday morning, November 16, 2009, federal agents for the government went
to the office of PWC's counsel in Atlanta, Georgia. While the summons and
indictment were left at Atlanta counsel's location, the agents were told that counsel
would not accept service on behalf of PWC. Less than ten days later, PWC’s board
of directors passed a resolution stating in relevant part that “PWC has determined that
it is in the best interest of PWC to appoint a single officer to acknowledge or receive
service of lawful process for and on behalf of PWC in any action against PWC
instituted in any court of any jurisdiction.” The resolution went on state that PWC did
“appoint and authorize Ahmed Alsayed Abdulziz as the only officer of [PWC] to
acknowledge service of lawful process,” of a purported worldwide PWC workforce
of 37,000. 4 Conveniently, it appears that Ahmed Alsayed Abdulziz has no intention
of being physically present anywhere other than in Kuwait. Moreover, contrary to the
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 7 of 39
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October communications noted above, Sam McCahan, PWC/Agility’s internal counsel,
has never identified any of the well traveled PWC /Agility senior staff that would make
themselves available for service.
To further avoid service of the summons that it is fully aware of, after indictment
PWC/Agility has sought safe passage (i.e. an agreement to not serve the summons or
any other process) for its employees entering the United States. Given this conduct of
PWC/Agility the Government, as more fully explained in the next section of this brief,
identified persons who acted as managing or general agents for the defendant and
served those individuals with process.
II. ARGUMENT
A. This Court Should Not Entertain The Motion Of A Fugitive
Defendant PWC/Agility is a fugitive from justice. As discussed below,
precedent deprives a fugitive of judicial process if it is not willing to likewise grace the
criminal courts with its presence. This Court should invoke the fugitive disentitlement
doctrine and not even consider the defendant’s request for relief.
The basis for the fugitive disentitlement doctrine is that a “fugitive from justice
has demonstrated such disrespect for the legal processes that [it] has no right to call
upon the court to adjudicate [its] claim.” Ortega-Rodriguez v. United States, 507 U.S.
234, 246-47 (1993). See also Molinaro v. New Jersey, 396 U.S. 365, 366 (1970).
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 8 of 39
9
The goal of the fugitive disentitlement doctrine is not so much to punish the fugitive,
but rather to eliminate the possibility of “heads I win, tails you’ll never see me again”
litigation, wherein the fugitive could enjoy the results of a victory while ignoring (and
by its conduct, effectively negating) the consequences of defeat. As the Eleventh
Circuit stated, “the rationales for this doctrine include the difficulty of enforcement
against one not willing to subject himself to the court's authority, the inequity of
allowing that ‘fugitive’ to use the resources of the courts only if the outcome is an aid
to him, the need to avoid prejudice to the non-fugitive party, and the discouragement
of flights from justice.” United States v. Barnette, 129 F.3d 1129, 1183 (11th Cir. 1997)
(citing Molinaro, 396 U.S. at 366). “While such [fugitive status] does not strip the
case of its character as an adjudicable case or controversy . . . it disentitles the
defendant to call upon the resources of the Court for determination of his claims.”
Molinaro, 396 U.S. at 366.
The fugitive disentitlement doctrine is based on equitable principles, see United
States v. Sharpe, 470 U.S. 675, 681 n.2 (1985). The equities in this case tilt
overwhelmingly in favor of invoking the doctrine and dismissing defendant
PWC/Agility’s motion to quash. In fact, the temerity of this defendant is breathtaking.
• Defendant PWC/Agility has received over $8.5 billion dollars
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 9 of 39
10
($8,500,000,0000) of United States taxpayers’ monies pursuant to
numerous prime vendor contracts and now seeks to evade litigating
criminal conduct over its overcharging the United States for the
performance of these contracts.
• Defendant PWC/Agility has previously sought relief from numerous U.S.
courts when it contends that it is the injured party; yet, it continues to
avoid service of process. For example, in just the last three years,
PWC/Agility or its subsidiaries have filed lawsuits in several U.S. courts
including: (1) a case filed in the United States District Court for the
District of Columbia seeking a TRO and preliminary injunction to block
the Defense Logistics Agency from suspending them as a result of the
Indictment; (2) a Freedom of Information Act case filed in the United
States District Court for the District of Columbia in which PWC/Agility
is seeking the government’s price negotiation memoranda regarding PV
I and II; (3) a case filed in the United States District Court for the District
of Columbia in which PWC/Agility challenged an adverse past
performance determination and, when the case was dismissed,
PWC/Agility refiled it in the United States Court of Claims; (4) an appeal
to the Armed Services Board of Contract Appeals in which PWC/Agility
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 10 of 39
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seeks a contract interpretation decision that it can retain “prompt
payment” discounts under the PV contracts; and (5) an appeal to the
Armed Services Board of Contract Appeals in which PWC/Agility claims
that it is owed additional monies for the use of trucks pursuant to one of
the PV contracts. In addition to availing itself of the jurisdiction of
United States tribunals when wanted to do so to its economic advantage,
PWC/Agility has accepted service of process of civil and criminal
subpoenas, but only before it was indicted.
• Defendant executed the contracts related to this matter and had almost
daily contact within the United States as part of its performance of these
contract.
• Defendant PWC/Agility boasts repeatedly in the media that it wishes to
vindicate its reputation in this Court by fully litigating this case, yet it
remains a fugitive, trying to litigate its claims in the court of public
opinion, while attempting to evade this court of law.
• On the heals of the Indictment, defendant PWC/Agility approved a
measure that only one person could accept process on its behalf and the
person it approved is outside the United States. To further avoid service
of the summons, post-indictment , PWC/Agility has sought and received
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 11 of 39
12
safe passage for its employees to meet with DLA officials at a Food
Service meeting.
In all candor, the Government is hard-pressed to find any equitable factor that would
weigh in defendant PWC/Agility’s favor.
The threshold question that this Court must determine is whether defendant
PWC/Agility is a fugitive. Whether any given defendant is a fugitive from justice is
a question of fact to be determined by the acts and intent of that defendant. The
government readily concedes that mere absence from the jurisdiction in which a crime
occurred does not render a suspect a fugitive from justice. Rather, the government must
prove by preponderance of the evidence that the defendant “absented [it]self from the
jurisdiction with the intent to avoid prosecution.” United States v. Fonseca-Machado,
53 F.3d 1242, 1244 (11th Cir.1995). However, the Eleventh Circuit has made clear
that “intent to flee from prosecution or arrest may be inferred from a person’s failure
to surrender to authorities” once the defendant learns of the charges while outside of
the jurisdiction. United States v. Barnette, 129 F.3d 1179, 1184 (11th Cir. 1997). The
courts have not read the requirement of fugitive status in an overly technical manner,
but have aimed to sweep up defendants “who know that they are subject to arrest in
this country” yet have not subjected themselves to criminal process.” Collazos v.
United States, 368 F.3d 190, 197 (2nd Cir. 2004) ; see also Brin v. Marsh, 596 F.Supp.
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 12 of 39
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1007, 1010 (D.D.C.1984) (applying “fugitive from justice” doctrine to court-martialed
soldier who remained “at large,” though somewhere in the United States); United
States v. Eng, 951 F.2d 461, 464 (2d Cir.1991)(“A defendant is a fugitive from justice
when he ‘actively resists returning from abroad to face [criminal] charges.’ ”); United
States v. Contents of Account Number 68108021, 228 F.Supp.2d 436, 443
(S.D.N.Y.2002) (claimant was fugitive where she knew she was subject to arrest but
“declined to face the charges against her”). Thus, the critical element of proof is
knowledge of a pending charge.
It is beyond peradventure that defendant PWC/Agility has knowledge of, and
indeed a copy of the original Indictment, the Superseding Indictment, and the
summons. In fact, there is some indication that defendant PWC/Agility has been
planning its flight from justice for some time, well before the actual return of the
original Indictment. Defendant PWC/Agility had an office in the United States at
Winchester, Virginia and employees in the United States, but the office was
permanently closed and the employees were sent back to what defendant PWC/Agility
clearly hoped was the safe haven of Kuwait, even before its lease expired, after the
defendant received the initial Grand Jury subpoena from the very Grand Jury that
eventually indicted it.
The criminal investigation of and charges against defendant PWC/Agility has
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5 PWC/Agility’s knowledge of the indictments and summons as well as its
intent to avoid service is evidenced by its corporate resolution ten days after the
indictment was unsealed which attempts to limit who can accept service on behalf
of the company to one inaccessible person, and its avoidance of employee travel
into the United States without an agreement that they not be served with process.
14
received substantial media coverage. In fact, defendant PWC/Agility acknowledged
the Indictment by passing a measure that limited service of process to only one
individual who remains outside the United States. It is apparent from this coverage
that the news has reached Kuwait where defendant PWC/Agility is located. The
Chairman of the Board of defendant PWC/Agility has made numerous comments
reported in the media about the case and boasted about vigorously defending the
charges in this Court. In addition, defendant PWC/Agility’s attorneys (and there are
many) have represented that they have conveyed messages about the charges to
defendant PWC/Agility’s Board of Directors. From this alone, it is clear that defendant
PWC/Agility has actual knowledge of the Indictment, the Superseding Indictment and
the summons to appear in court.5
Courts frequently have invoked the fugitive disentitlement doctrine to deny
defendants the benefit of the courts’s power and possible relief without facing any of
the attendant risk, and they have done so in the context of pretrial motions like that
filed by defendant PWC/Agility. In United States v. Kashamu, 656 F. Supp. 2d. 863
(N.D. Ill. 2009), the court refused to consider the defendant’s motion to quash arrest
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15
and dismiss indictment because the defendant was a fugitive and refused to submit
himself to the jurisdiction of the court. In invoking the fugitive disentitlement doctrine
and refusing to consider the defendant’s motion, the court noted that, “(c)ourts are
reluctant to afford fugitive defendants the benefits of a potential legal victory when
these defendants face no adverse consequences from unfavorable rulings. Id. at 866.
Similar results were reached in United States v. Adamov, 2008 WL 1943550 (W.D. Pa.
2008)(court refused to allow defendant to make special appearance for limited purpose
of moving to dismiss indictment as Russia refused to extradite defendant to face
charges in United States); United States v. Nabepanha, 200 F.R.D. 480, 483 (S.D. Fl.
2001)(court denied defendant’s motion for discovery because defendant was fugitive
from justice and a fugitive’s absence does not “entitle him to an advantage”). See also
United States v. Fonseca-Machado, 53 F.3d 1242, 1244 (11th Cir. 1995)(statute of
limitations tolled while defendant was fugitive from justice). But see In Re Hijazi, 589
F. 3d 401 (7th Cir. 2009)(appellate court issued writ of mandamus ordering district
court to rule on motion to dismiss indictment by defendant, a Lebanese national who
was a resident of Kuwait, even though defendant refused to surrender to U.S.
authorities and be arraigned); United States v. Noriega, 683 F. Supp 1373(S.D. Fl.
1988)(given unique status of defendant as head of state, court agreed to consider
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6 While the United States has been unable to find a case identical to the
situation here, Congress in 2000, in conjunction with a comprehensive revision of
civil asset forfeiture laws, specifically conferred statutory authority on federal
courts to order disentitlement in civil forfeiture cases. See 28 U.S.C. § 2466.
Significantly, Congress specifically authorized disentitlement to apply to
corporations. See United States v. $6,976,934.65, 554 F. 3d 123 (D.C. Cir. 2009),
for a discussion of application of CAFRA and the doctrine to a corporation.
16
defendant’s motion to dismiss indictment, even though he was a fugitive). 6
While this Court has discretion to allow defendant PWC/Agility to specially
appear and contest service, this case is not like Noriega or even Hijazi; rather, the
Court should invoke the fugitive disentitlement doctrine and refuse to consider the
defendant’s motion. Unlike in Noriega, this case does not involve the unique situation
of prosecuting a head of state. As more fully discussed below, other than the fact that
this case and the Hijazi case involve Kuwaiti residents, this case is nothing like Hijazi.
The defendant in Hijazi was not in privity of contract with the United States, had been
to the United States only once in an unrelated visit some eight years before the conduct
alleged in the indictment, and, at least as the defendant argued, had no other contact of
any sort with the United States. In stark contrast, defendant PWC/Agility was and is
the prime vendor on multi-billion dollar contracts with the United States government
that have generated payments to defendant PWC/Agility of more than $8.5 billion and
over the years and, even now, defendant has frequent, if not daily, contacts with
various agencies of the United States, including DSCP, DTS, and private vendors in
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17
the United States. In addition, defendant PWC/Agility and the other defendants have
numerous other contracts with the United States government. Here the defendant
asserts that this Court does not have jurisdiction over it, but that is because the
defendant refuses to submit to the Court’s jurisdiction. See United States v. Eagleson,
874 F.Supp. 27, 31 (D. Mass. 1994) (Canadian citizen and fugitive could not rely on
self-created absence to support motion to vacate restraining order and lis pendens).
Defendant PWC/Agility is trying to use this Court’s process as a sword, while at the
same time attempting to shield itself from this Court’s process. Such conduct simply
stated is unfair and should not be countenanced. See United States v. One Lot of U.S.
Currency, 628 F. Supp. 1473, 1476 (S.D. Fl. 1986).
B. Defendant PWC Was Properly Served With Process Pursuant to Fed. R.
Crim. P. 4 As The United States Served Several of Its Managing or General
Agents, An Alter Ego of The Defendant, And Also Mailed Process to The
Defendant’s Principal Place Of Business In The United States
Contrary to its claims, defendant PWC/Agility was properly served with process
pursuant to Fed. R. Crim. P. 4. Fed. Rule Crim. P. 4 (Arrest Warrant or Summons on
a Complaint) provides in pertinent part at subpart (c)(3)(C):
A summons is served on an organization by delivering a copy to
an officer, to a managing or general agent, or to another agent appointed
or legally authorized to receive service of process. A copy must also be
mailed to the organization's last known address within the district or to its
principal place of business elsewhere in the United States.
The United States served not one, but three of the defendant’s managing or
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18
general agents with service of process. The United States also served the registered
agent of defendant Agility DGS Holdings, Inc., the alter ego of defendant PWC/Agility
here in the United States. Finally, the United States mailed the process to
PWC/Agility’s only place of business in the United States in Alexandria, Virginia.
1. The United States Served Managing or General Agents Of The
Defendant
The United States submits and PWC/Agility does not dispute that Daniel
Mongeon, Paul Cerjan, and Edward Hoffman were served with summons for each of
the named defendants, including defendant PWC/Agility. As the affidavits of these
individuals attest, they each received summons for the named defendants with respect
to the Superseding Indictment. ( See affidavits B, D, and F attached to defendant
PWC/Agility’s Amended Motion to Quash). While defendant contends that none of
these individuals are officers of defendant PWC/Agility, the United States submits that
all of them were managing or general agents of defendant PWC/Agility at the time of
the service of process and service on them comports with Fed. R. Crim. P. 4.
In December 2005, Toby Switzer of defendant PWC advised DSCP that Mr.
Mongeon was “joining PWC.” See Government Exhibit C. Daniel Mongeon joined
PWC Logistics as a Vice President, Defense & Government Services. Later that year,
he was promoted to president of Agility DGS and in that capacity, met with DSCP
regarding the prime vendor contracts. See Government Exhibit D.
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19
Prior to his hiring by Agility, Daniel Mongeon had been a Major General in the
Army serving as the Director of Operations of DLA and was the commander of DSCP.
On July 16, 2008, Agility announced that Mr. Mongeon was being named the CEO of
its Defense & Government Services business group succeeding Toby Switzer who was
assuming a new advisory role. At the time of the appointment, the largest contract held
by Mr. Mongeon’s group was the PV contract. See Government Exhibit E.
When the Wall Street Journal reported on the investigation of PWC on January
15, 2008, Agility and PWC issued what it called a “Correction to the Wall Street
Journal Article on January 15, 2008" and in the correction began by saying, “Retired
Army Maj. Gen. Dan Mongeon, now at Public Warehousing Co. of Kuwait, was a
commander of the Defense Supply Center from 1998 to 2000.” See Government
Exhibit F.
Recently, when Agility announced that it was not being awarded PV III, the
announcement was issued to all Agility employees by Mr. Mongeon, identified as the
President and CEO of Agility DGS Holdings. The announcement noted that the
“company has been planning and adjusting for the potential loss of the Prime Vendor
revenue...” and added, “we won the first Prime Vendor contract in 2003.” It added that
“I want to thank you for the extraordinary commitment... and it is that commitment,
along with the assets and experience we put behind Prime Vendor, that will drive
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20
Agility’s success...” See Government Exhibit G.
Shortly after Mr. Mongeon’s promotion in 2008, on July 21, 2008, Agility
announced the appointment of Paul Cerjan as the president of Agility Defense &
Government Services. Like Mr. Mongeon, Mr. Cerjan also has acted as an agent for
defendant PWC/Agility. At the time of his retirement from the military, Mr. Cerjan
was an Army Lt. General. The announcement indicated that Cerjan “will be based in
Kuwait and will be responsible for Agility DGS’s Prime Vendor contract, that covers
the supply of most food items to U.S. troops in Iraq and Kuwait. See Government
Exhibit H.
As to Mr. Hoffman, Edward Hoffman is the Vice President and General Counsel
for Agility DGS. Before he started working for Agilty, he was in private practice
working on Agility matters and also had several positions with DLA. See Government
Exhibit D. Moreover, at various times since the onset of the investigation and the
subsequent indictments, both Messrs. Mongeon and Hoffman have met with and
discussed with DLA a possible settlement of this case. In fact, both Messrs. Mongeon
and Hoffman, met with DLA to discuss this case at a time when PWC/Agility was the
only defendant.
While the United States could find no cases discussing service of process on a
general or managing agent in a criminal case, there are numerous cases that discuss
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21
such service in a civil case. Those cases demonstrate that Messrs. Mongeon, Cerjan,
and Hoffman are general or managing agents of defendant PWC/Agility.
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22
The determination whether an individual is a “managing or general agent”
depends on a factual analysis of that person’s authority within the organization.
Gottlieb v. Sandia American Corporation, 452 F.2d 510, 513 (3rd. Cir. 1971). A
person not in charge of a corporation’s activities... may still qualify as a general or
managing agent for the purpose of Rule 4(d)(3) if his position is one of sufficient
responsibility so that it is reasonable to assume he will transmit notice of the
commencement of the action to his organizational superiors. Alloway v. Wain-Roy
Corporation, 52 F.R.D. 203, 204 (E.D. Pa. 1971), (citing Remington Rand, Inc. v.
Knapp-Monarch Company, 139 F. Supp. 613, (E.D. Pa. 1956)). Messrs. Mongeon,
Cerjan, and Hoffman all fit that description, and all clearly transmitted the process to
organizational superiors. As the court recognized in Boryk v. The dehavilland Aircraft
Co., 341 F.2d 666, (2nd Cir. 1965), in finding that the plaintiff had properly served a
managing agent:
That Fossett or Inc. was not explicitly labeled “managing agent” by
Ltd. or authorized (by it) to accept service of process...is not decisive.
Here, as throughout the area of jurisdiction, the realities and not just the
formalities must be dealt with. ...Ltd.’s timely answer indicates that it was
not prejudiced by the actual method of service. Specification of the
proper recipients of process is made to ensure that there will be actual
notice to the responsible officers. That purpose has been served.
Id. at 668-669 (internal citation omitted); See also Estates of Ungar v. the Palestinian
Authority, 153 F. Supp.2d 76 (D. R.I. 2001) (administrator of estates of decedents who
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23
were killed in Israel by terrorist group Hamas properly served Palestinian Authority
and Palestine Liberation Organization as persons served were individuals with the
authority to exercise independent judgment and discretion in the performance of duties
and thus were managing or general agents of entities).
In Heise v. Olympus Optical Company, Ltd., 111 F.R.D. 1, (N.D. Ind. 1986), the
plaintiff filed suit for a personal injury suffered during a physician’s use of a medical
instrument manufactured by the defendant OOC, Ltd., a Japanese corporation, and
distributed in the United States by its subsidiary, OC/America. OOC, Ltd. was not
incorporated in the United States and had its principal place of business in Tokyo,
Japan. OC/America had its principal place of business in New York. The complaint
was served by certified mail on an officer of OC/America in New York. The Japanese
parent filed a motion to dismiss for insufficiency of service of process contending that
service on an officer of the U.S. subsidiary was not effective service on the Japanese
parent.
While acknowledging that a parent/subsidiary relationship, standing alone, is
insufficient for purposes of establishing jurisdiction, the court concluded that service
on the Group Vice President of the U.S. subsidiary, a person whose position was one
of sufficient responsibility that it was reasonable to assume that he would transmit
notices to OCC, Ltd., the Japanese parent, was service on a managing or general agent
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24
within the meaning of Fed. R. Civ. P. 4(d)(3). Id. at 6.
Service of process on Daniel Mongeon, who is the President and CEO of Agility
DGS Holdings, Inc. and the Managing Director of Agility DGS Logistics Services
KSC(c), both of which are subsidiaries of defendant PWC/Agility; on Paul Cerjan, the
President of a business unit of Agility DGS Logistics Services Company KSC(c) which
Agility, more than once, has identified as having performed on the Prime Vendor
contracts; and on Edward Hoffman, the Senior Vice President and General Counsel for
Agility DGS Holdings, Inc., a subsidiary of defendant PWC/Agility, is service on
managing or general agents of defendant PWC/Agility and, thus, constitutes effective
service of process on PWC/Agility.
Finally, to the extent that defendant PWC/Agility suggests in its brief that only
Mr. Alsayed Abdulaziz can accept service of process on its behalf, it is mistaken. It
cites no authority in support of such a proposition because there is none. The Rule
clearly provides that a managing or general agent, in addition to the person designated
to accept service, can be served with process.
2. The United States Served the Registered Agent of Defendant Agility
DGS Holdings, Inc. Which Is The Alter Ego Of Defendant
PWC/Agility
In perfecting service on defendant PWC/Agility, the United States served the
registered agent of defendant Agility DGS Holdings, Inc., a subsidiary of defendant
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25
and an alter ego of defendant. While defendant PWC/Agility would like this Court to
believe that each of the named defendants operated as totally autonomous units, the
defendants’ own documents and statements prove otherwise.
Defendant PWC/Agility now claims to this court that it and the other two
defendants are autonomous business entities, but since at least 2006, defendant
PWC/Agility went to great lengths to suggest otherwise to the world at large.
Beginning in the fall of 2006, the defendant announced with great fanfare that the PWC
group of companies henceforth would be known as “Agility.” In October 2006, Tarek
Sultan, Chairman and Managing Director of defendant in a message to all employees
announced the new name noting that, “(w)ith the announcement of this exciting, single
global identity, employees and offices around the world will be working in unison as
one team to become market leaders...” See Government Exhibit I. Less than a month
later, defendant announced the change to the world. The message was sent to
defendant’s U.S. vendors on the PV contract in an announcement signed by Toby
Switzer, CEO and President, Agility, Defense & Government Services-International,
and Maj. General Dan Mongeon, USA (Ret.), President, Agility, Defense &
Government Services-US. See Government Exhibit J. From that point on, defendant
and its subsidiaries have been known as Agility. The defendant’s website is
www.agilitylogistics.com. The footer on emails indicated that the “company” was
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26
Agility Defense and Government Services which included PWC Logistics Services.
K.S.C.(c) and Agility Defense & Government Services, Inc. and their subsidiaries and
affiliates. See Government Exhibit K.
In January 2006, the defendant requested that there be a name change to the PV
contract as “PWC will complete a corporate reorganization whereby it will consolidate
the performance and administration of its government contracts to PWC Logistics
Services, a newly created wholly owned subsidiary of PWC.” See Government Exhibit
L. The defendant also sought a novation agreement with DLA seeking to change the
name on the PV contract to Agility. See Government Exhibits M & N. Ultimately,
DLA decided against approving the name change or a novation agreement and the
contract remained in the name of defendant PWC.
As far back as 2005, it was PWC Logistics, the predecessor to defendant Agility
DGS Logistics Services Company, K.S.C.(c) (“Agility KSCC”), that was taking credit
for holding the PV contract and other contracts awarded by DLA. See Government
Exhibits O and P, PWC Logistics Awarded DLA Contract. By 2007, it was Agility
Defense & Government Services that was taking credit for holding the PV contract and
other contracts issued and awarded by DLA. See Government Exhibits Q,R, S, T, U,
and V; Agility DGS Awarded $2.8 Billion Option Year on Subsistence Contract;
Agility Awarded New Contract for the Subsistence Prime Vendor Contract; Agility
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27
DGS Wins Warehousing Contract; Agility Awarded Option Year On U.S. Army’s
Heavy Lift VI Contract; Agility DGS Awarded Army Vehicle Storage Contracts,
Agility DGS Wins Warehousing Contract.
Yet, while the contract itself may be in the name of defendant PWC, the
defendant continues to hold itself out as Agility. The defendant has signed contract
modifications in the name of Agility. See Government Exhibit W. It has submitted
invoices to DLA in the name of PWC Prime Vendor and in the name of Agility Prime
Vendor. See Government Exhibits X.
In October 2008, proposals were due to DLA for the award of Prime Vendor
Contract III (“PV III”). PWC, or Agility, or Agility Defense & Government Services,
or PWC Logistics Services Co. KSC(c) submitted a proposal on October 2, 2008. The
proposal was signed by Daniel G. Mongeon, President & CEO of PWC Logistics
Services Co. KSC(c). The proposal represented that Agility was a “proud partner of
DSCP” and “remains committed to the current mission in Iraq.” As to Agility’s past
performance on the Prime Vendor contracts, the proposal states that, “Agility was
awarded the original Prime Vendor Iraq/Kuwait contract in 2003 and has successfully
managed the follow-on contract since 2005.” It goes on to state, “(a)s DSCP’s current
PV provider in Kuwait, Iraq, and Jordan...we maintain a record of superior
performance on both government and commercial programs. ... Ultimately, our
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28
experience will demonstrate that for this critical mission, we are DSCP’s proven, lowrisk
partner.” See Government Exhibit Y. Apart from the proposal being signed by
Daniel Mongeon, the proposal identifies other key personnel, including Paul G. Cerjan,
President, Agility DGS, Middle East, Africa, and Europe, who also was served with
process. See Government Exhibit Z.
Defendant PWC/Agility claims that it and the other two named defendants are
independent entities with separate officers, boards, and books. Yet, Agility’s annual
reports contain consolidated financial results and, Messrs. Mongeon and Hoffman
appeared before and participated in discussions with DLA regarding a resolution of this
case. See Government Exhibit AA.
Defendant PWC/Agility cites several cases for the proposition that service on
a subsidiary is not service on the parent. But where the subsidiary is the alter ego of
the parent, service on the subsidiary is effective service on the parent. The United
States submits that given the image and the functional reality that defendant PWC/
Agility has created for the world, including with DLA and DSCP, not only are Agility
DGS and Agility KSC(c) alter egos of PWC/Agility, it appears that one or both have
performed on the various prime vendor contracts held in the name of defendant
PWC/Agility. Moreover, the very fact that there is an integrated business unit within
Agility identified as Agility Defense & Government Services demonstrates both the
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29
unitary nature of defendant PWC/Agility’s efforts to secure U.S. government contracts,
and the control that defendant PWC/Agility exercises over the other two defendants
in this case. Illustrative of the level of control is the attached organizational chart that
shows Daniel Mongeon reporting to Toby Switzer who
was located in Kuwait at defendant PWC/Agility’s headquarters. See Government
Exhibit BB.
In Lamb v. Volkswagenwerk AK-Tiengesellschaft (VWAG), 104 F.R.D. 95 (S.D.
Fl. 1985), defendant VWAG sought to quash service of process contending that service
on its U.S. subsidiary, VWOA, and on CT Systems was not effective service on it. In
the case, VWAG submitted an affidavit from one of its executives, remarkably similar
to those submitted by Messrs. Mongeon, Cerjan, and Hoffman, claiming that it did not
exercise control over its subsidiary and service on the subsidiary was not service on it.
The court held otherwise finding that VWAG maintained a sufficient degree of control
over VWOA that it essentially was nothing more than a department of VWAG. Id. At
101. See also United States v. Toyota Motor Corporation, 561 F. Supp. 354 (C.D. Cal.
1983) (IRS enforcement petition was validly served on Japanese corporation by
personal service on one of its directors, who was also president of wholly-owned
American marketing subsidiary, in business offices of American subsidiary).
In the instant case, PWC, Agility, Agility Defense & Government Services,
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30
which is comprised of Agility DGS and Agility KSC(c), are used interchangeably, and
Agility is represented to the world as one unitary entity. While PWC purportedly is
the contractor on the PV contracts, Agility, Agility Defense and Government Services,
Agility KSC(c), and PWC Logistics all have taken credit for being the prime vendor
and working with DLA and/or DSCP. For defendant PWC/Agility to now try to tell
this Court they are independent companies, belies belief.
In this case, service on Agility DGS is service on defendant PWC/Agility. In
United States v. Chitron Electronics Company, Ltd., 668 F. Supp.2d 298 (D. Mass.
2009), the defendant Shenzen Chitron Electronics Company, Ltd. (Chitron-China) was
charged with illegally exporting defense articles and technology. Chitron-China
moved to dismiss all charges on the basis of insufficiency of service of process and
lack of personal jurisdiction, even though it had a U.S. subsidiary, Chitron Electronic,
Inc. (Chitron-U.S.) which the Government claimed was integrally managed by the
Chinese parent. The court denied the defendant’s motion to dismiss, concluding that
the indictment and other evidence provided by the Government showed a sufficient
interrelationship between the Chinese parent and the U.S. subsidiary so that service of
the summons on the president of the U.S. subsidiary was sufficient to effect service on
the foreign parent.
While defendant PWC/Agility claims that the Chitron case can be distinguished
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31
from the instant case because its subsidiaries are distinct from it, the many admissions
contained in its documents show otherwise. Defendant PWC/Agility and its defendant
subsidiaries, since at least the fall of 2006, have held themselves out to be one unitary
entity and all of the defendants at various times have claimed to have been awarded or
to have worked on the prime vendor contracts. Given the unitary nature of the
defendants and their interlocked and interlinked relationships, the instant case is no
different from Chitron.
3. Pursuant To Fed. R. Crim. P. 4, The United States Mailed The
Summons To Defendant PWC/Agility’s Principal Place Of Business
In The United States
In addition to serving managing or general agents of defendant PWC/Agility and
serving an officer and the registered agent of its Agility DGS Holdings, the defendant’s
alter ego, the United States mailed the summons to the defendant’s principal place of
business in the United States in Alexandria, Virginia. The Alexandria address is the
location of the defendant’s subsidiary which, as previously discussed is the alter ego
of the defendant. As such, a mailing to that address is a mailing to the principal place
of business of the defendant in the United States as the defendant PWC/Agility, by the
time it was indicted, had closed its office in Winchester, Virginia. As explained
previously, defendant PWC/Agility had an office in Winchester, Virginia, but that
office was closed just after the defendant received a grand jury subpoena from the
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32
grand jury that eventually indicted it. Given the defendant’s action in closing its
Winchester, Virginia office, the only remaining place of business in the United States
is the Alexandria address.
Defendant PWC/Agility relies on United States v. Johnson Matthey PLC, 2007
WL 2254676 (D. Utah 2007), in support of its claims that it has not been properly
served. Chitron, rather than Johnson Matthey, more appropriately applies in the instant
case. In Johnson Matthey, the only issue before the court was whether the government
had mailed the summons to the organization’s last known address within the district
or its principal place of business elsewhere in the United States as counsel for the
defendant had accepted service of process. The court concluded that the government
had not perfected service on the defendant because it had not complied with the second
part of Fed. R. Crim. P. 4. Without any discussion, the court simply indicated that
service upon the defendant’s subsidiary was not sufficient service on the parent. 2007
WL 2254676 at 4. There is nothing in the decision to indicate whether the government
sought to demonstrate that the subsidiary was the alter ego of the defendant, as has
been demonstrated in the instant case, or that the summons was mailed to the address
of the alter ego subsidiary as it was in the instant case. This is a crucial distinction.
Here, in addition to service on managing or general agents and the defendant’s alter
ego, all of the summons were mailed to the Duke Street address of Agility in
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33
Alexandria, Virginia. Agility regularly issued press releases from the Alexandria
address, and the predecessor to defendant Agility KSC(c) announced to the world that
its new offices at Duke Street in Alexandria, Virginia officially opened in August 2006.
See Government Exhibit CC. Thus, mailings to the Alexandria address, the only
address for defendants in the United States, satisfied the second part of Fed. R. Crim.
P. 4.
C. The United States Is Entitled To Enforce Its Criminal Laws Against
Foreign Nationals For Conduct Committed In The United States And With
Respect To U.S. Government Contracts Executed and Issued In The United
States
Defendant PWC/Agility suggests that merely because it is a Kuwaiti corporation
that it should not be subject to the jurisdiction of this court and that any action taken
against it might have “foreign relations concerns.” A review the factual context of the
prime vendor contracts highlights the weaknesses in defendant’s argument. First,
defendant PWC/Agility is the prime vendor on contracts with instrumentalities of the
United States, specifically DLA and DSCP. Defendant PWC/Agility submitted its
proposals, not in Kuwait, but in the United States at Philadelphia, Pennsylvania;
defendant PWC/Agility had a partner, at least on PV I, that is a U.S. corporation;
defendant PWC/Agility had an office and employees in the United States at least until
it abandoned the office and sent the employees to Kuwait, after it learned it was the
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7 In Hijazi, the Seventh Circuit issued a writ of mandamus ordering the
district court to rule on the defendant’s motions to dismiss the indictment. On
remand, the magistrate judge recently recommended to the district court that it
deny Hijazi’s motions to dismiss.
34
focus of a criminal investigation; defendant PWC/Agility’s officers and employees
made frequent visits to the United States regarding the prime vendor contracts;
defendant PWC/Agility’s employees, even now, have contacts virtually every day with
DSCP personnel who are located in Philadelphia, Pennsylvania; defendant
PWC/Agility submitted billings almost daily to DSCP in Philadelphia, Pennsylvania;
and all of the prime vendor contracts contained “Buy American” provisions that
required prime vendors to purchase foodstuffs from U.S. companies and for those
products to be shipped on U.S. flagged vessels requiring frequent, if not daily, contacts
by defendant PWC/Agility’s employees with U.S. companies and with personnel of the
Defense Transportation System (“DTS”) in the United States.
Moreover, much of the alleged illegal conduct in the indictment took place in
the United States, including the Northern District of Georgia. In short, this criminal
case is not about an effort to apply the criminal laws of the United States beyond our
borders but about alleged criminal conduct on these shores.
Defendant PWC/Agility emphasizes the case In Re Hijazi, 589 F.3d 401(2009),
and seeks to equate its situation to that of the defendant in Hijazi.7 Other than the fact
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 34 of 39
35
that both cases involve Kuwaiti residents, the cases are nothing alike. The defendant
in Hijazi was not in privity of contract with the United States, had been to the United
States only once in an unrelated visit some eight years before the conduct alleged in
the indictment, and, at least as the defendant argued, had no other contact of any sort
with the United States. In stark contrast, defendant PWC/Agility was and is the prime
vendor on contracts with the United States government that have generated payments
to defendant PWC/Agility of more than $8.5 billion and over the years and, even now,
defendant has frequent, if not daily, contacts with DSCP, DTS, and vendors in the
United States. In addition, defendant PWC/Agility and the other defendants have
numerous other contracts with the United States government.
While the Kuwaiti government has expressed some interest in this matter, it is
nothing like that it expressed in the Hijazi case. In Hijazi, the Kuwaiti government
made several demands that the criminal case be dismissed and that Hijazi not be
prosecuted in the United States. In contrast, in the instant case, the Kuwaiti
government has made one rather tepid written inquiry about this matter expressing
interest in an “amicable settlement.” And, assuming for the sake of argument, as the
Kuwaiti government asserts that “in accordance with Kuwaiti laws, Kuwaiti courts
have exclusive jurisdiction over all criminal and civil cases related to contracts
executed in the State of Kuwait with Kuwaiti companies,” that most assuredly does not
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 35 of 39
36
describe the case before this Court.
Further, while defendant PWC/Agility argues that this Court cannot or should
not exercise jurisdiction over it because of “foreign relations concerns,” it is not at all
reluctant to seek relief from U.S. courts when it contends that it is the injured party.
As detailed above, in just the last three years, defendant PWC/Agility or its subsidiaries
have filed at least five lawsuits in U.S. courts. When it feels that it is the injured party,
defendant PWC/Agility has no compunction about seeking relief in U.S. courts. Now,
however, when it faces fraud charges in a U.S. Court, PWC/Agility suggests dire
consequences if this Court acts on those charges and claims that this Court cannot
exercise jurisdiction over it.
Finally, defendant PWC/Agility, claiming other “foreign relations concerns,”
alleges that the United States engaged in a ruse to lure Ahmed Alsayed Abdulaziz, the
only person in a company of 37,000 designated to accept service of process on behalf
of defendant PWC/Agility, to the U.S. Embassy in Kuwait to serve him with process.
There is absolutely no truth to the allegations, and the United States can only conclude
that Mr. Alsayed Abdulaziz is hopelessly mistaken or confused and apparently has
submitted a mistaken or even false affidavit in support of his employer’s motion. No
one working on this case on behalf of the United States, including the prosecutors and
the agents assigned to this matter, including agents from the Federal Bureau of
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 36 of 39
37
Investigation, the Defense Criminal Investigative Service, the Army Criminal
Investigative Command, or anyone acting on their behest, made any attempt to lure Mr.
Alsayed Abdulaziz to the United States Embassy in Kuwait or tried to serve him with
any process at any time. See Government Exhibit DD. In an effort to further
investigate this claim, the United States requested defendant PWC/Agility provide the
telephone number of Mr. Abdulaziz. With that telephone number, the United States
could have checked embassy records to see if any calls were placed from the U.S.
Embassy to Mr. Abdulaziz’s telephone number. Defendant PWC/Agility has not
responded to the request of the United States and apparently has no intention of
providing the requested telephone number.
Given defendant PWC/Agility’s lack of a response, one can only assume that the
defendant does not want its claims of a ruse fully investigated and that the affidavit of
Mr. Abdulaziz may well be false. If that is so, it would not be the first time that an
employee of defendant PWC/Agility has made or encouraged others to make spurious
allegations in litigation. See Government Exhibit EE.
There was no ruse directed at defendant PWC/Agility and this prosecution does
not unduly impact foreign relations.
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 37 of 39
38
III. Conclusion
For the foregoing reasons, the United States respectfully requests that this Court
deny defendant PWC/Agility’s Amended Motion to Quash Service of Process. If the
Court concludes that the United States has not properly served defendant PWC/Agility,
the United States requests that it be allowed time to attempt service of process through
diplomatic channels with the assistance of the State Department of the United States.
Respectfully submitted,
F. GENTRY SHELNUTT
ACTING UNITED STATES ATTORNEY
/s/BARBARA E. NELAN
Assistant U.S. Attorney
Georgia Bar No. 537537
/s/RICHARD E. REED
Special Assistant U.S. Attorney
Georgia Bar No. 597745
75 Spring Street S.W.
Suite 600
Atlanta, GA 30303
404-581-6000
Fax 404-581-6181
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 38 of 39
39
CERTIFICATE OF SERVICE
This is to certify that I have this day served upon the persons listed below a copy
of the foregoing document electronically:
Richard H. Deane, Jr., Esq.
Anne Moody Johnson, Esq.
David J. Bailey, Esq.
Jones Day
1420 Peachtree Street, NE
Suite 800
Atlanta, GA 30309-3053
Counsel for Public Warehousing Company K.S.C.
Tom Bever, Esq.
Brian McEvoy, Esq.
William W. Fagan, III, Esq.
Chilivis Cochran Larkins & Bever
3127 Maple Drive, NE
Atlanta, GA 30305
Counsel for Agility DGS Holdings, Inc.
Richard W. Hendrix, Esq.
Finch McCranie
225 Peachtree Street, NE
1700 South Tower
Atlanta, GA 30303
Counsel for Agility DGS Logistics Services Company, K.S.C. (c)
This 21st day of June, 2010.
/s/BARBARA E. NELAN
ASSISTANT UNITED STATES ATTORNEY
Case 1:09-cr-00490-TWT-AJB Document 92 Filed 06/21/2010 Page 39 of 39

 

[رجل مبتدئ]

التعليقات على الوثيقه ومن بينهم في واحد منهم جايب كلام عن طارق السلطان با ليت تشرفونا بالزبده
Davespilot says:

June 22nd 2010 at 7:10 pm
I’m in Kuwait.

Just tried to download the indictment. I love a juicy legal proceeding with my coffee in the morning…

For some strange reason, the link is being blocked by DoD servers (which happen to route through the Kuwaiti network).

Coincidence?

Reply to this comment
2Ms Sparky says:

June 22nd 2010 at 7:20 pm
Well that didn’t take long. I will try to email you the indictment. You might try to find a non DoD system to download the exhibits.

Reply to this comment
3JHowds says:

June 22nd 2010 at 8:58 pm
Agility/GCC/Taos is attempting to force employees on their way out (due to their contracts not being renewed by the USG) to sign a document promising not to speak disparagingly against the company, REVEAL THE TRUTH, etc. I love how Agility is so worried about their image……NOW. A little too late don’t you think.

Maybe someone can FEDEX an orange jumpsuit to Tarek Sultan. I’d pay serious cash to see him in that ensemble.

Reply to this comment
4Forseti says:

June 23rd 2010 at 3:16 am
I hope that the DoD and the DoJ remember that most of these contractors that have been or will be indicted hired retired US Military officers as executives within their organizations. These retirees are subject to the UCMJ and have a lot to lose if they don’t cooperate with authorities:

http://usmilitary.about.com/od/justicelawlegislation/a/ucmjart2.htm

Reply to this comment
5Jhowds says:

June 23rd 2010 at 4:25 am
Forseti,

Some of the PWC/Agility individuals wanted for questioning by the USG (i.e. Toby Switzer) are retired US Military. They are aware they would be immediately picked up at Immigration as they entered the states and purposely haven’t returned for 2-3 years. Still subject to UCMJ? Maybe, but if they’re in Kuwait, good look with jurisdiction and enforcement. I guess they plan on never returning to the US or waiting until the case has been dismissed and/or blown over.

Reply to this comment
6Forseti says:

June 23rd 2010 at 5:07 am
Perhaps the USG could put a little pressure on them by impacting their bottom line aka retirement benefits. Seems these individuals will do almost anything for money.

Reply to this comment
7JHowds says:

June 23rd 2010 at 8:33 am
Toby Switzer’s salary was over $350K annually, so I doubt his Navy retirement, even if completely withdrawn, would be of a much penalty. Jail time is what the USG wants!

Reply to this comment
8john doe says:

June 23rd 2010 at 10:42 am
This comment came in anonymously, but appears to be a communication from Tarek Sultan to employees/shareholders etc. I do not normally allow anonymous comments quoting someone else. But these same statements appeared in various media. If someone can authenticate this communication and possibly even send me the original email that would be appreciated. ~ Ms Sparky


Dear all,

I would like to provide you with a quick update on the legal dispute with the US Government. As you know, the question currently before the federal court in Atlanta is whether the Justice Department complied with U.S. law when it attempted to notify PWC of an indictment last November.

As we had been anticipating, the Justice Department filed its brief on this subject yesterday. It is our position that the Department’s filing substitutes rhetoric for legal analysis and provides no justification for its decision to ignore longstanding U.S. law on proper service of process. PWC welcomes the court’s review and eventual ruling on the matter.

For seven years, we have fully performed contracts with the U.S. government to feed troops in Iraq and Kuwait. The U.S. government has repeatedly recognized us for excellent performance under the most difficult war-time conditions. PWC has passed dozens of audits, inspections, compliance reviews and oversight procedures. We continue to be accountable to our U.S. government customers every day.

We believe that this case is a dispute over contract terms, not a criminal matter. We remain committed to discussions with the Justice Department that are aimed at resolving the underlying dispute involving the Prime Vendor food contract.

Best regards,

Tarek Sultan
Chairman and Managing Director

Reply to this comment
9Keven Barnes says:

June 25th 2010 at 4:37 am
What is amazing is that DLA’s Director, James Washington, James.Washington@dla.mil, must be not reading Ms. Sparky. Neither are 2 of DLAs Contracting Officers, medard.kowalski@dla.mil, or Brenda.Delawder@dla.mil, because they are trying to tell us that they are going to award a Single Sole Source to Agility and not even post a J & A that is signed or approved by their legal department. This is not the first time I have found Mr. Kowalski doing this. The last time he was going to give Agility’s DDKS contract to KGL without a J & A. That has been competed now.

Read it for yourself on http://www.fbo.gov

Warehouse Distribution Operations
Solicitation Number: SP310005C0020ext
Agency: Defense Logistics Agency
Office: DLA Acquisition Locations
Location: Defense Distribution Center

Solicitation Number:
SP310005C0020ext
Notice Type:
Special Notice
Synopsis:
Added: Jun 03, 2010 8:59 am
The Defense Logistics Agency, Defense Distribution Center (DDC) intends to issue a modification to Contract SP3100-05-C-0020 with Agility/PWC for the extension of distribution services at the Defense Distribution Depot Kuwait, Southwest Asia in support the Central Command Area of Operation. This is a modification to the existing competitively awarded contract and is an interim effort to provide distribution support services for an estimated period of performance of 1 September 2010 through 28 February 2011. The contract modification will extend the current contract for a contractor owned contractor operated distribution facility. The estimated six month extension is required to ensure sufficient time for transition and movement of DLA managed material from the current contractor (Agility/PWC) owned facility to a new location to be determined under the competitive solicitation SP330010R0020. This contract effort will allow for continuous service while the solicitation (SP330010R0020) for a new contract is negotiated, reviewed, approved, and awarded, and while DLA managed material is transitioned from the current facility to a new facility. This announcement is for a sole source procurement to Agility/PWC under FAR 6.302-1, “only one responsible source and no other supplies or services will satisfy agency requirements.” This notice of intent is not a request for competitive proposals and no solicitation is available. Interested persons may identify their interest and capability to respond to the requirement. Information received, if any, will normally be considered solely for the purpose of determining whether to conduct a competitive procurement. Responses are due no later than the 2:00 PM, Eastern Standard Time, on the fifteenth day after publication of this synopsis. Email responses to Brenda Delawder, Contract Specialist, at Brenda.Delawder@dla.mil.

Contracting Office Address:
J Avenue
DDC J7-AB, Bldg 404
New Cumberland, Pennsylvania 17070-5001
United States
Place of Performance:
PWC
Safat, Kuwait

Kuwait
Primary Point of Contact.:
Brenda S. Delawder,
Contract Specialist
Brenda.Delawder@dla.mil
Phone: 717-770-7373
Fax: 717-7707244
Secondary Point of Contact:
MEDARD R KOWALSKI,
CONTRACTING OFFICER
medard.kowalski@dla.mil
Phone: 717 770-5979
Fax: 717 770-5689

Reply to this comment
10Ms Sparky says:

June 25th 2010 at 5:26 am
Thanks for the heads up! Agility and it’s subs are suspended. How can they even legally get a modification? At this rate Sultan can drag this out for every milking this cash cow until she’s dry!

Reply to this comment
11John Doe says:

June 25th 2010 at 9:12 am
Mr. Barnes. Before you make allegations, you should make sure your facts are accurate. Mr. Washington is not the director of DLA and a J&A is not required to be posted until after the contract/mod has been awarded. Research the FAR before you loosely make comments about DLA and government acquisition in a public forum.

Reply to this comment
12Keven Barnes says:

June 25th 2010 at 5:59 am
Is Tarek Sultan actually trying to pull a KGL and say they were not served? Tarek is way past being served. The best news is that although Agility was looking like they could buy their way out, that just probably isn’t going to happen this time. Did Tarek sign a contract that said Agility was subject to the laws of Kuwait or to the U.S. Government’s Federal laws and the Rules of the Federal Acquisition Regulations? Luckily for the U.S. Government, they can start withholding Agility’s monthly payments in order to start getting paid for the Qui Tam suit which is going to triple the damages of the Agility fraud.

Reply to this comment
13john.sensen says:

June 25th 2010 at 7:50 am
Keven,

Until the USG awards the new DDKS they are forced to extend Agility depsite their suspension. The USG was prepared to move to KGL by the end of August based on the Sole Source Notice, but political pressure forced the USG to open it up to full and open competition. The new award is scheduled for 31AUG. Crazy enough, Agility and KGl are most likely the only bidders. Um, hello USG, but Agility is not eligble for consideration. I wonder who the other party(ies) possibly competing is(are). Can anyone out there provide the other competitors’ names?

Reply to this comment
14Keven Barnes says:

June 25th 2010 at 10:24 am
The U.S. Government has several military organizations that could be mobilized to take over the DDKS on a moments notice. Agility’s contracts could be terminated for convenience (Yep, Agility would have to look that up in our U.S. law books and the FAR as their contract has nothing what-so-ever to do with Kuwait law) and then send them packing. Is Congress going to allow DLA to continue to rewarding Agility (a foreign corporation ) by paying them hundreds of millions of dollars with illegal contract extensions in the face of the latest DOJ filing while publically firing a 4-Star General?
DLA needs a leadership change for that to happen ( if Congress is reading) and send DLA Director Washington out the door. Contracting Officers who dream up J & A’s and either don’t post, or post unsigned J & As thinking that the U.S. Taxpayer is not watching needs to come to an end. Mobilize those Logistics troops who would love to come to Kuwait and take over the DDKS contract. What is better, to continue paying a company labeled a “Fugitive” by DOJ or mobilize a Guard unit that will perform the job and send their pay back to their families in the States.
The DLA and the Army has hoodwinked the Taxpayer into believing that there is no alternative. What is the motivation is something we will be reading about in future Ms Sparky editions. How many Army officers have we seen indicted from Arifjan?
Come on Congress – that is why we have a Subcommittee for Contracting Oversight and Senator Clair McCaskill to lead it – to look at the fraud and do something about it.
I don’t see KGL or Agility on the Interested bidders list. I see:
TRANSPORTERS INTERNATIONAL LLC
Afkar General Trading & Contracting Co
AMERICAN UNITED GROUP
ASIA LOGISTICS GENERAL TRADING COMPANY
INTERMARKETS GLOBAL
LATVIAN CONNECTION GENERAL TRADING AND CONSTRUCTION LLC
ALPHA MULTIMODAL LOGISTICS CO.W.L.L
BLANCHARD’S CONTRACTING
MCNEIL TECHNOLOGIES, INC.
AMERICAN LOGISTICS MANAGEMENT COMPANY
CAROLINA LINKAGES, INC
ENGAZ GENERAL TRADING & CONTRACTING COMPANY
PROJECTS MANAGEMENT COMPANY
SOLUTION MANAGERS INTERNATIONAL
LAKESHORE ENGINEERING SERVICES, INC.
AMERICAN GENERAL TRADING AND CONTRACTING CO
MANTECH INFORMATION SYSTEMS & TECHNOLOGY CORPORATION
AVIATION TRAINING CONSULTING, LLC
AMERICAN GENERAL TRADING AND CONTRACTING US INCORPORATED
MARAFIE KUWAITIA GEN. TRADING & CONT. CO. W L L
AL TAHA INTERNATIONAL
AL HOKOOK INTERNATIONAL GENERAL TRADING & CONTRACTING
KANOOS GROUP OF COMPANIES
MC KINLEY GROUP INTERNATIONAL WLL
WILLIAMS, W W COMPANY, THE (INC)
POTOMAC FALLS CONSULTING GROUP
AL QABANDI UNITED COMPANY
U. S. LOGISTICS, INC.
AL JAMEH GROUP TRADING AND CONTRACTING EST
TAHA INTERNATIONAL COMPANY
Industrial Construction & Trading company For General Trading & Contracting.
Stanley Associates
GEN4 SERVICES
AL-ALAMEEN AL-ARABIA GEN. TRADING CO.
GLOBAL INTEGRATED GROUP EST GEN TRD & CONT
NODYCE GLOBAL LLC
SHAW ENVIRONMENTAL & INFRASTRUCTURE, INC.
TRADE LINKS LOGISTICS GENERAL TRADING & CONTRACTING CO.
M & E GROUP LTD
CBM35

Reply to this comment
15john.sensen says:

June 25th 2010 at 11:17 am
Mobilizing a company of military/USG civilian logisticians is an option, but not a likely one. They still need the facilities from a Kuwaiti company as Camp Arifjan doesn’t have the facilities available. The USG is trying to extricate themselves from OIF and OEF, not send more troops. I agree about the “fugitive” statement. How can the USG honestly extend a “fugitive” contractor and continue to pay them to run DDKS while they look for another provider? Scandalous! Kuwait is extremely limited in terms of expansive, combined indoor/outdoor storage, so their options are few.

Agility and many contractors purposely DON’T post their names of the interested parties list. If a company can provide all of the goods/services themselves, there’s little updside in announcing their candidacy. The USG revealed recently that the DDKS site visit(s) will be conducted next week, but not who they will be visiting. Maybe someone can follow the USG officials around and see who they visit.

After all the delay (the USG cancelling the solicitation last fall, cancelling the SSN, then taking their time to release and award the new DDKS) Agility has pocketed MILLIONS more in revenue/profit from the USG all while suspended. Am I the only one that has a problem with that?

Reply to this comment
16Keven Barnes says:

June 25th 2010 at 12:14 pm
SP3300-10-R-0014 was the SSN to KGL for 1-year and (5) 1-year options + a 5% Award fee.

And that was for 1/2 the space requirement of SP310009R0004

After DLA was caught giving a gift-horse, they scrapped the 5% Award fee (2% better than KBRs LOGCAP Award fee) and knocked the contract down to 1-year and (3) 1-year options.

What is it with DLA and their 2 favorite Kuwaitis Agility and KGL ?

I am sure we will be reading about DLA CO’s in the future on Ms. Sparkey.

Synopsis:
Added: Jan 29, 2010 2:37 pm
The Defense Logistics Agency/ Defense Distribution Center (DLA/DDC)
has identified a continued need for storage and distribution services in
Kuwait to support the Central Command Area of Responsibility (CENTCOM
AOR). The requiring agency requires both existing indoor and outdoor
storage space; labor and supporting material(s) to provide distribution
services. More specifically, the indoor storage space shall provide for 1)
perimeter-secured and collocated facilities; 2) a minimum of 700,000
square feet of adjacent indoor storage space configured for secure rack,
bin, bulk and open storage and; 3) a minimum of 800,000 square feet of
adjacent outdoor storage space capable of accommodating forklift, truck
and trailer vehicles and static loads of full 20 and 40 foot MILVANs. The
labor requirement shall include performance of distribution operations
during adverse situations involving disruption of normal workload and
include the ability to meet an increased or accelerated performance to
support Department of Defense (DoD) contingencies and workload surges
dictated by CENTCOM AOR requirements. The material to be provided
includes but is not limited to: distribution materials; Material Handling
Equipment (MHE) and; transportation assets. The services above will be
provided under a resultant contract for a period of two years consisting of
one base year and one, one-year option year.
A contract will be awarded pursuant to 10 U.S.C. 2304(c)(1), only one or a
limited number of responsible sources and no other type of supplies or
services will satisfy agency requirements. The proposed contract action is
for services for which the Government intends to solicit and negotiate with
only one source under authority of FAR 6.302-1. The DDC intends to issue
Solicitation SP3300-10-R-0014 to KGL Logistics located at Al Jahra Road
and Ghazali Bridge; Shuwaikh, KWT 13106 to meet the requirements
description above. KGL currently provides similar services in the
CENTCOM and has been identified as the only source with existing
facilities to meet the agency’s requirement. This notice of intent is not a
request for competitive proposals; however, all responsible sources may
submit a capability statement, proposal, or quotation, which shall be
considered by the agency. Any response must be received within seven
days after the date of the publication of this synopsis. A determination by
the Government not to compete this proposed contract based upon
responses to this notice is solely within the discretion of the Government.
This synopsis is for informational purposes only and for the benefit of
potential subcontractors. Companies interested in subcontracting
opportunities should contact KGL directly.
Contracting Office

Primary Point of Contact.:
Shane M Crusey,
Contract Specialist
Shane.Crusey@dla.mil
Phone: (717) 770-4425
Secondary Point of Contact:
MEDARD R KOWALSKI,
CONTRACTING OFFICER
medard.kowalski@dla.mil
Phone: 717 770-5979
Fax: 717 770-5689

Reply to this comment
17Keven Barnes says:

June 25th 2010 at 1:36 pm
June 25th 2010 at 9:12 am

Mr. Barnes. Before you make allegations, you should make sure your facts are accurate. Mr. Washington is not the director of DLA and a J&A is not required to be posted until after the contract/mod has been awarded. Research the FAR before you loosely make comments about DLA and government acquisition in a public forum.

I would say I have the right guy since we have several emails going back and forth.

Washington, James (DRMS)
James.Washington@dla.mil
Dear Mr. Barnes,
Reference ……………….

Respectfully,
James Washington
Director, Acquisition

That does appear to be the word “Director” in his signature block.

When DLA couldn’t get their attorney to sign a Justification (dreamed up reason for a sole source) and Approval (Signature of a competent or willing authority) KGLs Single Sole Source evaporated.

All single sole sources need a signed J & A. Especially when it involves $ 500 + million per year contract!! Like I say, through a couple of FOIAs, we will see who said to SSN KGL and who was the exact person who directed that the perks be removed from the COCO contract.

If DLA thought they didn’t need a J & A, they would have carried on, but you are just flat wrong on this one which is why we saw R-0020 canceled and now competed.

Reply to this comment
18john.sensen says:

June 25th 2010 at 10:41 pm
Keven,

It appears from the above info that Mr. Washington may be the Director of Acquisition at DRMS, and not the Director of DLA. That’s a big difference.

Anyways, yes, a General Officer must sign off on the Sole Source justification and I never saw one posted, but the award had not been made last January/February. With all of the shenanigans that occur with defense contractors, I can understand competing virtually everything. DDKS may be one exception though now that Agility is suspended.

Reply to this comment
19pamrobinson says:

June 25th 2010 at 6:11 pm
Didn’t hurt that Congressman Issa’s office called DLA about the no bid contract either.

Reply to this comment
20john.sensen says:

June 25th 2010 at 10:32 pm
Honestly, I don’t think it’s a fascination the USG has with Agility and or KGL. Even with the reduced requirement of 800,000 sqft outdoor and 700,000 indoor sqft combined, I know of only 2-3 Kuwaiti companies with the amount of space needed. Options are very limited. Unfortunately, the Kuwait Government is exceedingly stingy with their provisions of land leases. Even with the vast empty areas and desert landscapes, the Kuwaitis like to maintain control. Imagine that. Now that Agility is suspended, KGL was/is the easy choice. Come August we’ll know if there truly are other legitimate competitors that can fulfill the solicitation requirements.

Reply to this comment
21Keven Barnes says:

June 26th 2010 at 6:16 am
I wonder if Agility was present in court ?

Agility Evidence Points to Continued Fraud, U.S. Tells Judge in Atlanta
By David Beasley and William McQuillen – Jun 25, 2010

Agility may still be overbilling the U.S. on military supplies, federal prosecutors said in a pretrial hearing in a criminal case against the Middle East’s largest storage and logistics company.

“We feel very strongly and have evidence that the fraud has continued,” Assistant U.S. Attorney Barbara Nelan told U.S. Magistrate Judge Alan Baverman today in Atlanta. Agility is accused of overcharging the U.S. government on a multibillion- dollar contract to supply food for troops in Kuwait and Iraq. The Kuwaiti company is “war-profiting,” she said.

The U.S.’s contract with Agility, formerly known as Public Warehousing Co., runs until December, Nelan said.

In a filing earlier this week, prosecutors accused the company of being a “fugitive from American justice” that is trying to evade a trial on charges of overbilling on military supplies. Agility, based in Safat, Kuwait, claims it has not been properly served in the case.

Richard Deane, attorney for Agility, declined to comment on Nelan’s statements in today’s hearing.

Tom Bever, attorney for Agility DGS Holdings, an Agility unit also named in the indictment, told the court that the case is a contract dispute over whether Agility should have kept discounts it received from vendors or refunded them to the government.

The company was indicted in November on allegations it overcharged the U.S. government on a multibillion-dollar contract to supply food for troops in Kuwait and Iraq. The company said April 28 it was negotiating with the U.S. Justice Department on a possible settlement of the case.

The case is U.S. v. Public Warehousing Co., 09-cr-490, U.S. District Court for the Northern District of Georgia (Atlanta).

Reply to this comment
22john.sensen says:

June 26th 2010 at 6:52 am
By definition Agility must return all rebates and volume discounts to the USG. The “prompt payment discount” may be different, but if you have read through the indictments it’s clear Agility/PWC attempted to influence the classification of volume discounts to read “prompt payment discount” in order to avoid payment to the USG. Damn! Agility/PWC’s own internal documents reveal this fact and Tom Bever, attorney for Agility DGS Holdings, is claiming it’s a contract dispute. My apologies Mr. Bever (LOL – love the last name), but you are an asshat and are defending criminals.

Reply to this comment
23Keven Barnes says:

June 26th 2010 at 7:59 am
Cost (yes Agility, that means the actual cost) plus I think didn’t register when Agility got the contract. How can the USG sit there and say they are “still” getting overcharged and not just terminate the contract?

If the FAA said that Alaska Airlines was still flying with stripped out jack-screws for the elevator trim, would Alaska still be flying planes after the defect was identified that caused an aircrash (California coast – remember)? No. Would the HCA at the FAA still have a job if he didn’t ground the airline I doubt it. But the incompetents at the Army and DLA are still there and the DOJ are saying the Jackscrew is still broken and the Agility plane is still flying and scooping up money as she goes !!!! You gotta smile at the DOJ. The are wire-tapping the wrong folks. Try wire tapping and investigating the Army and the DLA – or better yet, just read FBO to see the incompetents flaunting the FAR.

What Agency Contracting Officer did Agility solicit to get the volume discounts? Our Goverment seems to NOT be paying attention to the branch of service that have gone to jail from Camp Arifjan (Army) and yet they still let that Branch of Service conduct contracting? 2 Agency’s Contracting Officers have to be relieved of duty. DLA and the Army.

Reply to this comment
24pamrobinson says:

June 27th 2010 at 3:03 pm
Why would the Army not strongarm Agility to continue the lease and use the monies coming in to backpay the US taxpayers. This way the award can go to a US contractor, use Agility workers, and cut out any future foreign contracting company.
This way it stays American,with US jurisdiction,and money coming back in to America.

It seems alittle anti American to give the DDKS to a Kuwaiti company when DOD has Agility by the balls and can use their lease as a bargaining tool to give the contract to a US company.
Must be alot of under the table monies going around

Reply to this comment
25QuickSand says:

June 27th 2010 at 7:42 pm
Based on FAR, due to Agility’s suspension the USG MUST transfer to another vendor if they are deemed competitive and capable of providing the same service/product. The USG is attempting to extricate themselves from the mess that is Agility/PWC. The USG has few options in Kuwait with a Kuwaiti company. Seriously, and they know it.

Reply to this comment
26Davespilot says:

June 27th 2010 at 2:32 am
I was thinking about something. First, Ms Sparky: You have to get orange shirts made with “Gotbusted Penitentiary” on the back! LMAO when I saw that picture. I have got to get one of those!

Second, I would not put it past Tarek Sultan to try something here. Agility can’t get the contract, however that will not stop Tarek from partnering up with a Kuwaiti company — if one wins the bidding. Agility has a huge warehouse complex here in Kuwait. It sits next to Nestle’s warehouses, actually. Agility has a very large fleet of trucks, trailers, etc. At their high-point, PWC (aka Agility) trucks were all you would see on the roads.

If a Kuwaiti company gets the contract, look for Tarek to buddy up with them. The Kuwaiti company — whoever they may be — wins the bid and handles the admin side, while Tarek “loans” them his “rebranded” fleet of trucks for a cut as a “subcontractor”.

It’s possible…

“Gotbusted Penitentiary” — Love it!

Reply to this comment
27QuickSand says:

June 27th 2010 at 10:26 am
As absurd as this may sound, I’ve heard from three separate contacts that claim Tarek Sultan is preparing to sell off most of the Agility/PWC assets, pay out the remaining cash on the balance books to the shareholders and close the doors to the business offices for good. Considering the FACT that Agility recently sold close to 1,500 of its Heavy Lift VI trucks and is looking to sell off all of their Prime Vendor assets, there may be some merit to the rumors. If Agility/PWC goes out of business, the USG will have no method to collect funds from a judgment. The Kuwait Government owns the land and warehouses Agility/PWC currently occupies and operates, so that’s safe. If Agility/PWC liquidates and pays out all remaining cash in dividends, the US taxpayer is screwed! How crazy is that scenario?!

Reply to this comment
28Keven Barnes says:

June 27th 2010 at 11:58 am
The USG better start setting withholding Agility/PWC’s monthly payments. There are still 120 companies that will forever be associated with Agility and there is a DOJ who may want to keep them on the suspended list for much longer than otherwise may have happened. Of course who knows what deals the U.S. Army has cooked up with Agility where they all sail off into the sunset counting their

 

[volvickuwait]

شوف الفرق ما بين
BP واجيليتي
عندما تم اتهام شركة bp في قضية التلوث البيئي فتحة خط ساخن على الانترنت وكانت تزود المساهمين بجميع وآخر الاجراءات القانونية والعملية وتحدث رئيس مجلس الادارة عن الاجراءات التي اتخذتها شركته وايضا هناك ناطق رسمي باسم شركة bp ..... ألحين نجيك حق الحلو طارق السلطان مع اعضاء مجلس ادارته في آخر اجتماع للجمعية العمومية ؟

سؤال من مساهمين إلى رئيس مجلس الادارة:-

سؤال : ما هي آخر مستجدات القضية ؟
الجواب : أي قضية يا الحبيب

س : قضية امريكا
ج : أي امريكا يا معود امريكا خسرت كاس العالم وطلعت

س : لا يا حضرة رئيس مجلس الادارة اقصد القضية المرفوعة ضدكم
ج : اسمح لي يا الحبيب ما اقدر اتكلم عن الامريكان وهم مو موجودين هاذي نميمة

س: حضرة رئيس مجلس الادارة احنا على قد حالنا وحبينا نترزق الله ارجوك جاوبنا
ج : تراكم اذيتونا يا الهيلق حاطين لكم كم دينار وقاعدين تدللون عليهم

س: انزين الحل شنو ... شنو انسوي وين نروح
ج : ألحين رديت علي آنا..... الحين محطة مشرف ومجاريها فاضت والكهربا كل شوي تنقطع ما كو بهاذا البلد إلا هاذا الولد ...

س : وينتقل السؤال الى التأمينات ارجو من ممثل التأمينات الاجتماعية وهي جهة حكومية ان تجاوب
ج : آنا ما لي شغل آنا طنبور طين

س: انزين ابي اي احد يجاوبنا يا جماعة احنا حطينا فلوسنا وين نروح شنو نسوي نبي احد يوجهنا


وبعد عناء طويل وانتظار جاء الجواب من فراش مجلس الادارة

بابا انت يسوي واجد قرقر ... انتا كله قرقر قرقر بابا روح بيت مال انت وسوي شاي حليب شوف فيلم من انديا واجد احسن بعدين الحين يجي صيف هاذا نفر مال مجلس ادارة يبي يروح سويسرا من فلوس مال انته ها ها مخ ماكو

ويأتي الجواب من المساهم ردا على فراش مجلس الادارة : صح كلامك يا بابو انا مخ ماكو كل شي خراب في خراب كهربا كل شوي سوي خراب انا لازم يروح البحر .... بعدها يذهب المساهم الى البحر ليغير الجو ويجلس على شاطيء البحر واذا به ينظر الى شيء في البحر عليه ختم مكتوب عليه مع تحيات محطة مشرف

 

[رجل مبتدئ]

Monday, June 28, 2010
How agile is Agility?
What, another whistle-blower story? Yep. Read on.

Agility Defense & Government Services, Inc.
Agility Defense & Government Services, Inc. provides supply chain management, logistics, and commodity services for defense and government customers. It offers third party logistics, prime vendor program, sourcing and purchasing, and performance-based logistics. Agility Defense & Government Services, Inc. was formerly known as PWC Logistics. The company was incorporated in 2006 and is based in Alexandria, Virginia. Agility Defense & Government Services, Inc. operates as a subsidiary of The Public Warehousing Company.
From the Agility company website and press releases:
Since 2003, Agility has developed a world-class commercial logistics business to complement its government contracting portfolio. That development has expanded Agility’s geographic footprint around the world, established our leading position in emerging markets, and added specialized capabilities to help us meet the needs of niche market segments.

Today, Agility’s commercial logistics arm, Global Integrated Logistics (GIL) operates in 120 countries and serves over 50,000 customers. Our operational platform is distinguished by its strength in high-growth emerging markets: China, India, and the rest of Asia; the GCC and the rest of the Middle East; Russia and Eastern Europe; and Latin America. And we offer specialized logistics solutions around Chemicals, Fuels, Fairs & Events, and Project Logistics.

We also have diversified our Defense & Government (DGS) business. Our focus has been on expanding our business with the US government in geographies outside of Kuwait and Iraq, as well as attracting other governments, international organizations, and non-governmental organizations as customers. Finally, we acquired a group of non-Agility branded companies working in the areas of industrial real estate management, aviation and ground handling, and customs modernization and e-government solutions, which are grouped together under Agility Infrastructure.

From modest roots in Kuwait, Agility became an acknowledged global top ten global logistics player. We bring global scope, flexibility, and specialization of services to complex logistics challenges. We take pride in our commitment to personal service. Our customers consistently acknowledge that Agility goes above and beyond.


Ethics

Agility believes strongly in conducting business with integrity. Our reputation for integrity and fairness is an asset every employee owns.

Values

Integrity: Building trust with customers, communities, suppliers, and one another by doing what is right: keeping our promises, being a good citizen, complying with regulations and laws, and honoring rules of engagement.

Personal Ownership: Taking personal responsibility for the outcome by anticipating needs, being resourceful, and following through until the job is done.

Teamwork: Working across organizational and cultural boundaries to achieve extraordinary performance and deliver personal service to customers.

Excellence: Building a culture based on excellence in thought and in execution to better serve customers.

 

[لؤلؤة الخيران]

يا جماعة الخير مشكورين على نقل الأخبار بس الصفحة فولت حجى واحنا ضايعين نبى احد يترجم

 

[معشي الجن]

يا جماعة الخير مشكورين على نقل الأخبار بس الصفحة فولت حجى واحنا ضايعين نبى احد يترجم

أخوي ! خذ وخل ,,, نفس الكلام, نفس الرد نفس السعر

 

[ليث متواضع]

الوثيقه من المحكمه يا ليت واحد يعطينا الزبده
تقبلو تحياتي
in the united states district court
for the northern district of georgia
atlanta division
united states of america : Criminal indictment
v. :
: No. 1:09-cr-0490-ajb-twt
the public warehousing :
Company, k.s.c., a/k/a agility; : First superseding
agility dgs holdings, inc., :
F/k/a agility defense & :
Government services, inc., :
F/k/a pwc logistics services, inc.; :
Agility dgs logistics services :
Company, k.s.c.(c), d/b/a and f/k/a :
Pwc logistics services k.s.c.(c); :
Defendants.
United states’ brief in opposition to defendant public
warehousing company k.s.c.,a/k/a agility’s amended
motion to quash service of process on indictment
now comes the united states, by its attorneys, f. Gentry shelnutt, acting
united states attorney for the northern district of georgia with respect to this matter,
barbara e. Nelan, assistant united states attorney, and richard e. Reed, special
assistant united states attorney, and hereby submit this brief in opposition to
defendant public warehousing company k.s.c., a/k/a agility’s (“pwc/agility”)
amended motion to quash service of process on the indictment and superseding
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 1 of 39
1 pwc/agility original motion- doc. 25; pwc/agility amended motion-
doc. 54; pwc/agility brief in support of motion- doc. 51.
2 during the relevant period of time, pwc/agility by and through
subsidiaries, had numerous contract with the united states in addition to the three
prime vendor contracts that are the subject of the present case.
2
indictment.1 the defendant’s motion, as amended, should not even be considered by
this court, but, if it is, it should be denied as the defendant has been properly served
pursuant to fed. R. Crim p. 4.
Defendant pwc/agility has received over $8.5 billion from the united states
pursuant to three prime vendor contracts2 issued by the department of defense. It
frequently has taken advantage of courts of the united states to sue agencies of the
united states and has regular, almost daily, contacts with the united states and has for
the last six years. On november 17, 2009, after it was indicted and charged with
conspiring to defraud the united states and engaging in multiple fraudulent schemes
in connection with its overcharging for providing troop support services to the united
states during operation iraqi freedom, in a press release that it issued worldwide, it
denied the charges and asserted that it looked forward to its day in this court. Now that
it is faced with that prospect, it has retreated to the safe haven of kuwait. Defendant
pwc/agility contemptuously contends that it is not subject to the laws or courts of the
united states.
Case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 2 of 39
3
pwc/agility is a fugitive from american justice, and this court should not
entertain its motion to quash. A corporation, such as pwc/agility, who has amassed
sizeable profits from contracting with and overcharging the united states during
operation iraqi freedom and who seeks to invoke the processes of the united states
law when it suits pwc/agility while flouting those very same laws, simply is not
entitled to call upon the resources of this court for determination of its motion.
I. Background
in march 2003, the united states and its coalition partners launched operation
iraqi freedom, following in the tank tracks of operation desert storm. The troops in
operation iraqi freedom were supported by, among others, the defense logistics
agency (dla), a logistics combat support agency within the department of defense,
and the defense supply center philadelphia (dscp), the troop support center agency
of the dla. Dscp is the center for managing four major commodities: Medical
material, subsistence/garrison feeding, construction and equipment, and clothing and
textiles. Dscp also is responsible for managing dod’s prime vendor contracts within
those commodities, including prime vendor contracts for subsistence/garrison feeding
for military personnel located in the middle east.
As part of its mission of supporting troops worldwide, in particular in the middle
east, dscp issued solicitations for the acquisition of foodstuffs and non-food items
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 3 of 39
4
for various parts of the middle east, including iraq, kuwait, and jordan. These
solicitations sought proposals to provide foodstuffs and non-food items pursuant to
prime vendor contracts.
On may 10, 2002, dscp issued solicitation spo300-02-r-4003 to establish
contracts with prime vendors to provide food and non-food products to the military and
other authorized customers of the dla in three overseas european zones, including
zone iii-the middle east. This solicitation was for a one-year base period, up to four
one-year options, and had an estimated total acquisition value of $111,959,520.
Defendant pwc/agility submitted a proposal and on may 28, 2003, dscp
issued a notice of award to defendant pwc awarding it contract spo300-03-d-3061,
which was known as prime vendor i (pv-i), to provide full-line food and non-food
distribution in zone iii (kuwait and qatar). On june 27, 2003, dscp issued
modification p00001 to pv-i, creating an iraqi deployment zone and providing that
defendant pwc would also provide food and non-food items to the military in iraq.
This modification provided that the maximum total acquisition value limit of pv-i
could increase by as much as 1200% over the estimated contract dollar value.
Thereafter, while dscp was in the process of soliciting proposals for a new
prime vendor contract in the middle east, on february 16, 2005, defendant
pwc/agility was awarded contract spm300-05-d-3119 (also known as modification
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 4 of 39
5
p00036 to pv-i). This “bridge contract” provided for continued prime vendor
operation under the terms and conditions of pv-i through december 15, 2005.
On september 3, 2004, dscp issued solicitation spm300-04-r-0323 to
establish a prime vendor contract for the acquisition of food and non-food items for the
military and other authorized customers in several middle eastern zones, including
zone i comprised of iraq, kuwait, and jordan.
On november 16, 2004, defendant pwc provided its initial proposal and on july
7, 2005, dscp awarded contract spm300-05-d-3128, known as prime vendor ii
(pv-ii), to pwc to provide food and non-food items to the military and other
authorized customers in zone i. The estimated value of the award over the life of the
contract with options was $4,668,890,200.
Over the duration of the three prime vendor contracts defendant pwc/agility
has been paid at least the following approximate amounts: Pv-i- $934,000,000;
bridge- $1 billion; pv-ii- $6.6 billion.
All of the prime vendor solicitations were issued from the united states, the
offerors were required to submit their proposals to dscp in the united states, and the
contracts awarded to “prime vendors” pursuant to the solicitations were executed in
the united states. In addition, the prime vendor contracts contained a “buy american”
provision that required, with some exceptions, that all foodstuffs provided pursuant to
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 5 of 39
3 as demonstrated in government exhibit a, pwc/agility used the trade
name of “pwc logistics” in the performance of the prime vendor contracts.
6
the prime vendor contracts come from united states’ vendors and that all foodstuffs
provided be shipped on u.s. Flagged vessels.
Apart from regular, frequent, often every-day, contacts that defendant
pwc/agility had with dscp and with vendors here in the united states, the defendant
had a staffed office in winchester, virginia. The office was opened in the spring of
2004, although a formal lease was not executed until the fall of 2004. While the lease
agreement continued until the fall of 2008, the office was abandoned in the spring of
2008, just after defendant pwc received the initial subpoena from the grand jury that
ultimately indicted it . See government exhibit. A3 and b.
Pwc/agility knew about the impending original indictment as early as october
23, 2009. On that day, in an e-mail communication, counsel for the united states
asked pwc/agility counsel to "identify a pwc representative who will accept a
summons with respect to an initial appearance /arraignment." on october 30, pwc's
counsel responded in relevant part that: "i spoke with sam mccahon [pwc internal
counsel] regarding the availability of someone to receive a summons on behalf of
pwc. He noted that pwc's senior staff travels a great deal and often on short notice,
so it is it [sic] not always predictable as to who will be where at a particular time. He
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 6 of 39
4 see exhibit k to pwc/agility brief.
7
did note that if you can provide perhaps as little as a week's notice, he should be able
to specify someone for your purposes, if not himself."
prior to its indictment, pwc/agility had accepted service of both civil and grand
jury subpoenas through one of its united states based counsel. On november 9, 2009,
a grand jury sitting in this district issued an indictment against the defendant. That
indictment was unsealed on november 16, 2009. After the indictment was unsealed,
early monday morning, november 16, 2009, federal agents for the government went
to the office of pwc's counsel in atlanta, georgia. While the summons and
indictment were left at atlanta counsel's location, the agents were told that counsel
would not accept service on behalf of pwc. Less than ten days later, pwc’s board
of directors passed a resolution stating in relevant part that “pwc has determined that
it is in the best interest of pwc to appoint a single officer to acknowledge or receive
service of lawful process for and on behalf of pwc in any action against pwc
instituted in any court of any jurisdiction.” the resolution went on state that pwc did
“appoint and authorize ahmed alsayed abdulziz as the only officer of [pwc] to
acknowledge service of lawful process,” of a purported worldwide pwc workforce
of 37,000. 4 conveniently, it appears that ahmed alsayed abdulziz has no intention
of being physically present anywhere other than in kuwait. Moreover, contrary to the
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 7 of 39
8
october communications noted above, sam mccahan, pwc/agility’s internal counsel,
has never identified any of the well traveled pwc /agility senior staff that would make
themselves available for service.
To further avoid service of the summons that it is fully aware of, after indictment
pwc/agility has sought safe passage (i.e. An agreement to not serve the summons or
any other process) for its employees entering the united states. Given this conduct of
pwc/agility the government, as more fully explained in the next section of this brief,
identified persons who acted as managing or general agents for the defendant and
served those individuals with process.
Ii. Argument
a. This court should not entertain the motion of a fugitive
defendant pwc/agility is a fugitive from justice. As discussed below,
precedent deprives a fugitive of judicial process if it is not willing to likewise grace the
criminal courts with its presence. This court should invoke the fugitive disentitlement
doctrine and not even consider the defendant’s request for relief.
The basis for the fugitive disentitlement doctrine is that a “fugitive from justice
has demonstrated such disrespect for the legal processes that [it] has no right to call
upon the court to adjudicate [its] claim.” ortega-rodriguez v. United states, 507 u.s.
234, 246-47 (1993). See also molinaro v. New jersey, 396 u.s. 365, 366 (1970).
Case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 8 of 39
9
the goal of the fugitive disentitlement doctrine is not so much to punish the fugitive,
but rather to eliminate the possibility of “heads i win, tails you’ll never see me again”
litigation, wherein the fugitive could enjoy the results of a victory while ignoring (and
by its conduct, effectively negating) the consequences of defeat. As the eleventh
circuit stated, “the rationales for this doctrine include the difficulty of enforcement
against one not willing to subject himself to the court's authority, the inequity of
allowing that ‘fugitive’ to use the resources of the courts only if the outcome is an aid
to him, the need to avoid prejudice to the non-fugitive party, and the discouragement
of flights from justice.” united states v. Barnette, 129 f.3d 1129, 1183 (11th cir. 1997)
(citing molinaro, 396 u.s. At 366). “while such [fugitive status] does not strip the
case of its character as an adjudicable case or controversy . . . It disentitles the
defendant to call upon the resources of the court for determination of his claims.”
molinaro, 396 u.s. At 366.
The fugitive disentitlement doctrine is based on equitable principles, see united
states v. Sharpe, 470 u.s. 675, 681 n.2 (1985). The equities in this case tilt
overwhelmingly in favor of invoking the doctrine and dismissing defendant
pwc/agility’s motion to quash. In fact, the temerity of this defendant is breathtaking.
• defendant pwc/agility has received over $8.5 billion dollars
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 9 of 39
10
($8,500,000,0000) of united states taxpayers’ monies pursuant to
numerous prime vendor contracts and now seeks to evade litigating
criminal conduct over its overcharging the united states for the
performance of these contracts.
• defendant pwc/agility has previously sought relief from numerous u.s.
Courts when it contends that it is the injured party; yet, it continues to
avoid service of process. For example, in just the last three years,
pwc/agility or its subsidiaries have filed lawsuits in several u.s. Courts
including: (1) a case filed in the united states district court for the
district of columbia seeking a tro and preliminary injunction to block
the defense logistics agency from suspending them as a result of the
indictment; (2) a freedom of information act case filed in the united
states district court for the district of columbia in which pwc/agility
is seeking the government’s price negotiation memoranda regarding pv
i and ii; (3) a case filed in the united states district court for the district
of columbia in which pwc/agility challenged an adverse past
performance determination and, when the case was dismissed,
pwc/agility refiled it in the united states court of claims; (4) an appeal
to the armed services board of contract appeals in which pwc/agility
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 10 of 39
11
seeks a contract interpretation decision that it can retain “prompt
payment” discounts under the pv contracts; and (5) an appeal to the
armed services board of contract appeals in which pwc/agility claims
that it is owed additional monies for the use of trucks pursuant to one of
the pv contracts. In addition to availing itself of the jurisdiction of
united states tribunals when wanted to do so to its economic advantage,
pwc/agility has accepted service of process of civil and criminal
subpoenas, but only before it was indicted.
• defendant executed the contracts related to this matter and had almost
daily contact within the united states as part of its performance of these
contract.
• defendant pwc/agility boasts repeatedly in the media that it wishes to
vindicate its reputation in this court by fully litigating this case, yet it
remains a fugitive, trying to litigate its claims in the court of public
opinion, while attempting to evade this court of law.
• on the heals of the indictment, defendant pwc/agility approved a
measure that only one person could accept process on its behalf and the
person it approved is outside the united states. To further avoid service
of the summons, post-indictment , pwc/agility has sought and received
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 11 of 39
12
safe passage for its employees to meet with dla officials at a food
service meeting.
In all candor, the government is hard-pressed to find any equitable factor that would
weigh in defendant pwc/agility’s favor.
The threshold question that this court must determine is whether defendant
pwc/agility is a fugitive. Whether any given defendant is a fugitive from justice is
a question of fact to be determined by the acts and intent of that defendant. The
government readily concedes that mere absence from the jurisdiction in which a crime
occurred does not render a suspect a fugitive from justice. Rather, the government must
prove by preponderance of the evidence that the defendant “absented [it]self from the
jurisdiction with the intent to avoid prosecution.” united states v. Fonseca-machado,
53 f.3d 1242, 1244 (11th cir.1995). However, the eleventh circuit has made clear
that “intent to flee from prosecution or arrest may be inferred from a person’s failure
to surrender to authorities” once the defendant learns of the charges while outside of
the jurisdiction. United states v. Barnette, 129 f.3d 1179, 1184 (11th cir. 1997). The
courts have not read the requirement of fugitive status in an overly technical manner,
but have aimed to sweep up defendants “who know that they are subject to arrest in
this country” yet have not subjected themselves to criminal process.” collazos v.
United states, 368 f.3d 190, 197 (2nd cir. 2004) ; see also brin v. Marsh, 596 f.supp.
Case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 12 of 39
13
1007, 1010 (d.d.c.1984) (applying “fugitive from justice” doctrine to court-martialed
soldier who remained “at large,” though somewhere in the united states); united
states v. Eng, 951 f.2d 461, 464 (2d cir.1991)(“a defendant is a fugitive from justice
when he ‘actively resists returning from abroad to face [criminal] charges.’ ”); united
states v. Contents of account number 68108021, 228 f.supp.2d 436, 443
(s.d.n.y.2002) (claimant was fugitive where she knew she was subject to arrest but
“declined to face the charges against her”). Thus, the critical element of proof is
knowledge of a pending charge.
It is beyond peradventure that defendant pwc/agility has knowledge of, and
indeed a copy of the original indictment, the superseding indictment, and the
summons. In fact, there is some indication that defendant pwc/agility has been
planning its flight from justice for some time, well before the actual return of the
original indictment. Defendant pwc/agility had an office in the united states at
winchester, virginia and employees in the united states, but the office was
permanently closed and the employees were sent back to what defendant pwc/agility
clearly hoped was the safe haven of kuwait, even before its lease expired, after the
defendant received the initial grand jury subpoena from the very grand jury that
eventually indicted it.
The criminal investigation of and charges against defendant pwc/agility has
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5 pwc/agility’s knowledge of the indictments and summons as well as its
intent to avoid service is evidenced by its corporate resolution ten days after the
indictment was unsealed which attempts to limit who can accept service on behalf
of the company to one inaccessible person, and its avoidance of employee travel
into the united states without an agreement that they not be served with process.
14
received substantial media coverage. In fact, defendant pwc/agility acknowledged
the indictment by passing a measure that limited service of process to only one
individual who remains outside the united states. It is apparent from this coverage
that the news has reached kuwait where defendant pwc/agility is located. The
chairman of the board of defendant pwc/agility has made numerous comments
reported in the media about the case and boasted about vigorously defending the
charges in this court. In addition, defendant pwc/agility’s attorneys (and there are
many) have represented that they have conveyed messages about the charges to
defendant pwc/agility’s board of directors. From this alone, it is clear that defendant
pwc/agility has actual knowledge of the indictment, the superseding indictment and
the summons to appear in court.5
courts frequently have invoked the fugitive disentitlement doctrine to deny
defendants the benefit of the courts’s power and possible relief without facing any of
the attendant risk, and they have done so in the context of pretrial motions like that
filed by defendant pwc/agility. In united states v. Kashamu, 656 f. Supp. 2d. 863
(n.d. Ill. 2009), the court refused to consider the defendant’s motion to quash arrest
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15
and dismiss indictment because the defendant was a fugitive and refused to submit
himself to the jurisdiction of the court. In invoking the fugitive disentitlement doctrine
and refusing to consider the defendant’s motion, the court noted that, “(c)ourts are
reluctant to afford fugitive defendants the benefits of a potential legal victory when
these defendants face no adverse consequences from unfavorable rulings. Id. At 866.
Similar results were reached in united states v. Adamov, 2008 wl 1943550 (w.d. Pa.
2008)(court refused to allow defendant to make special appearance for limited purpose
of moving to dismiss indictment as russia refused to extradite defendant to face
charges in united states); united states v. Nabepanha, 200 f.r.d. 480, 483 (s.d. Fl.
2001)(court denied defendant’s motion for discovery because defendant was fugitive
from justice and a fugitive’s absence does not “entitle him to an advantage”). See also
united states v. Fonseca-machado, 53 f.3d 1242, 1244 (11th cir. 1995)(statute of
limitations tolled while defendant was fugitive from justice). But see in re hijazi, 589
f. 3d 401 (7th cir. 2009)(appellate court issued writ of mandamus ordering district
court to rule on motion to dismiss indictment by defendant, a lebanese national who
was a resident of kuwait, even though defendant refused to surrender to u.s.
Authorities and be arraigned); united states v. Noriega, 683 f. Supp 1373(s.d. Fl.
1988)(given unique status of defendant as head of state, court agreed to consider
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6 while the united states has been unable to find a case identical to the
situation here, congress in 2000, in conjunction with a comprehensive revision of
civil asset forfeiture laws, specifically conferred statutory authority on federal
courts to order disentitlement in civil forfeiture cases. See 28 u.s.c. § 2466.
Significantly, congress specifically authorized disentitlement to apply to
corporations. See united states v. $6,976,934.65, 554 f. 3d 123 (d.c. Cir. 2009),
for a discussion of application of cafra and the doctrine to a corporation.
16
defendant’s motion to dismiss indictment, even though he was a fugitive). 6
while this court has discretion to allow defendant pwc/agility to specially
appear and contest service, this case is not like noriega or even hijazi; rather, the
court should invoke the fugitive disentitlement doctrine and refuse to consider the
defendant’s motion. Unlike in noriega, this case does not involve the unique situation
of prosecuting a head of state. As more fully discussed below, other than the fact that
this case and the hijazi case involve kuwaiti residents, this case is nothing like hijazi.
The defendant in hijazi was not in privity of contract with the united states, had been
to the united states only once in an unrelated visit some eight years before the conduct
alleged in the indictment, and, at least as the defendant argued, had no other contact of
any sort with the united states. In stark contrast, defendant pwc/agility was and is
the prime vendor on multi-billion dollar contracts with the united states government
that have generated payments to defendant pwc/agility of more than $8.5 billion and
over the years and, even now, defendant has frequent, if not daily, contacts with
various agencies of the united states, including dscp, dts, and private vendors in
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17
the united states. In addition, defendant pwc/agility and the other defendants have
numerous other contracts with the united states government. Here the defendant
asserts that this court does not have jurisdiction over it, but that is because the
defendant refuses to submit to the court’s jurisdiction. See united states v. Eagleson,
874 f.supp. 27, 31 (d. Mass. 1994) (canadian citizen and fugitive could not rely on
self-created absence to support motion to vacate restraining order and lis pendens).
Defendant pwc/agility is trying to use this court’s process as a sword, while at the
same time attempting to shield itself from this court’s process. Such conduct simply
stated is unfair and should not be countenanced. See united states v. One lot of u.s.
Currency, 628 f. Supp. 1473, 1476 (s.d. Fl. 1986).
B. Defendant pwc was properly served with process pursuant to fed. R.
Crim. P. 4 as the united states served several of its managing or general
agents, an alter ego of the defendant, and also mailed process to the
defendant’s principal place of business in the united states
contrary to its claims, defendant pwc/agility was properly served with process
pursuant to fed. R. Crim. P. 4. Fed. Rule crim. P. 4 (arrest warrant or summons on
a complaint) provides in pertinent part at subpart (c)(3)(c):
A summons is served on an organization by delivering a copy to
an officer, to a managing or general agent, or to another agent appointed
or legally authorized to receive service of process. A copy must also be
mailed to the organization's last known address within the district or to its
principal place of business elsewhere in the united states.
The united states served not one, but three of the defendant’s managing or
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18
general agents with service of process. The united states also served the registered
agent of defendant agility dgs holdings, inc., the alter ego of defendant pwc/agility
here in the united states. Finally, the united states mailed the process to
pwc/agility’s only place of business in the united states in alexandria, virginia.
1. The united states served managing or general agents of the
defendant
the united states submits and pwc/agility does not dispute that daniel
mongeon, paul cerjan, and edward hoffman were served with summons for each of
the named defendants, including defendant pwc/agility. As the affidavits of these
individuals attest, they each received summons for the named defendants with respect
to the superseding indictment. ( see affidavits b, d, and f attached to defendant
pwc/agility’s amended motion to quash). While defendant contends that none of
these individuals are officers of defendant pwc/agility, the united states submits that
all of them were managing or general agents of defendant pwc/agility at the time of
the service of process and service on them comports with fed. R. Crim. P. 4.
In december 2005, toby switzer of defendant pwc advised dscp that mr.
Mongeon was “joining pwc.” see government exhibit c. Daniel mongeon joined
pwc logistics as a vice president, defense & government services. Later that year,
he was promoted to president of agility dgs and in that capacity, met with dscp
regarding the prime vendor contracts. See government exhibit d.
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19
prior to his hiring by agility, daniel mongeon had been a major general in the
army serving as the director of operations of dla and was the commander of dscp.
On july 16, 2008, agility announced that mr. Mongeon was being named the ceo of
its defense & government services business group succeeding toby switzer who was
assuming a new advisory role. At the time of the appointment, the largest contract held
by mr. Mongeon’s group was the pv contract. See government exhibit e.
When the wall street journal reported on the investigation of pwc on january
15, 2008, agility and pwc issued what it called a “correction to the wall street
journal article on january 15, 2008" and in the correction began by saying, “retired
army maj. Gen. Dan mongeon, now at public warehousing co. Of kuwait, was a
commander of the defense supply center from 1998 to 2000.” see government
exhibit f.
Recently, when agility announced that it was not being awarded pv iii, the
announcement was issued to all agility employees by mr. Mongeon, identified as the
president and ceo of agility dgs holdings. The announcement noted that the
“company has been planning and adjusting for the potential loss of the prime vendor
revenue...” and added, “we won the first prime vendor contract in 2003.” it added that
“i want to thank you for the extraordinary commitment... And it is that commitment,
along with the assets and experience we put behind prime vendor, that will drive
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20
agility’s success...” see government exhibit g.
Shortly after mr. Mongeon’s promotion in 2008, on july 21, 2008, agility
announced the appointment of paul cerjan as the president of agility defense &
government services. Like mr. Mongeon, mr. Cerjan also has acted as an agent for
defendant pwc/agility. At the time of his retirement from the military, mr. Cerjan
was an army lt. General. The announcement indicated that cerjan “will be based in
kuwait and will be responsible for agility dgs’s prime vendor contract, that covers
the supply of most food items to u.s. Troops in iraq and kuwait. See government
exhibit h.
As to mr. Hoffman, edward hoffman is the vice president and general counsel
for agility dgs. Before he started working for agilty, he was in private practice
working on agility matters and also had several positions with dla. See government
exhibit d. Moreover, at various times since the onset of the investigation and the
subsequent indictments, both messrs. Mongeon and hoffman have met with and
discussed with dla a possible settlement of this case. In fact, both messrs. Mongeon
and hoffman, met with dla to discuss this case at a time when pwc/agility was the
only defendant.
While the united states could find no cases discussing service of process on a
general or managing agent in a criminal case, there are numerous cases that discuss
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21
such service in a civil case. Those cases demonstrate that messrs. Mongeon, cerjan,
and hoffman are general or managing agents of defendant pwc/agility.
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22
the determination whether an individual is a “managing or general agent”
depends on a factual analysis of that person’s authority within the organization.
Gottlieb v. Sandia american corporation, 452 f.2d 510, 513 (3rd. Cir. 1971). A
person not in charge of a corporation’s activities... May still qualify as a general or
managing agent for the purpose of rule 4(d)(3) if his position is one of sufficient
responsibility so that it is reasonable to assume he will transmit notice of the
commencement of the action to his organizational superiors. Alloway v. Wain-roy
corporation, 52 f.r.d. 203, 204 (e.d. Pa. 1971), (citing remington rand, inc. V.
Knapp-monarch company, 139 f. Supp. 613, (e.d. Pa. 1956)). Messrs. Mongeon,
cerjan, and hoffman all fit that description, and all clearly transmitted the process to
organizational superiors. As the court recognized in boryk v. The dehavilland aircraft
co., 341 f.2d 666, (2nd cir. 1965), in finding that the plaintiff had properly served a
managing agent:
That fossett or inc. Was not explicitly labeled “managing agent” by
ltd. Or authorized (by it) to accept service of process...is not decisive.
Here, as throughout the area of jurisdiction, the realities and not just the
formalities must be dealt with. ...ltd.’s timely answer indicates that it was
not prejudiced by the actual method of service. Specification of the
proper recipients of process is made to ensure that there will be actual
notice to the responsible officers. That purpose has been served.
Id. At 668-669 (internal citation omitted); see also estates of ungar v. The palestinian
authority, 153 f. Supp.2d 76 (d. R.i. 2001) (administrator of estates of decedents who
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23
were killed in israel by terrorist group hamas properly served palestinian authority
and palestine liberation organization as persons served were individuals with the
authority to exercise independent judgment and discretion in the performance of duties
and thus were managing or general agents of entities).
In heise v. Olympus optical company, ltd., 111 f.r.d. 1, (n.d. Ind. 1986), the
plaintiff filed suit for a personal injury suffered during a physician’s use of a medical
instrument manufactured by the defendant ooc, ltd., a japanese corporation, and
distributed in the united states by its subsidiary, oc/america. Ooc, ltd. Was not
incorporated in the united states and had its principal place of business in tokyo,
japan. Oc/america had its principal place of business in new york. The complaint
was served by certified mail on an officer of oc/america in new york. The japanese
parent filed a motion to dismiss for insufficiency of service of process contending that
service on an officer of the u.s. Subsidiary was not effective service on the japanese
parent.
While acknowledging that a parent/subsidiary relationship, standing alone, is
insufficient for purposes of establishing jurisdiction, the court concluded that service
on the group vice president of the u.s. Subsidiary, a person whose position was one
of sufficient responsibility that it was reasonable to assume that he would transmit
notices to occ, ltd., the japanese parent, was service on a managing or general agent
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24
within the meaning of fed. R. Civ. P. 4(d)(3). Id. At 6.
Service of process on daniel mongeon, who is the president and ceo of agility
dgs holdings, inc. And the managing director of agility dgs logistics services
ksc(c), both of which are subsidiaries of defendant pwc/agility; on paul cerjan, the
president of a business unit of agility dgs logistics services company ksc(c) which
agility, more than once, has identified as having performed on the prime vendor
contracts; and on edward hoffman, the senior vice president and general counsel for
agility dgs holdings, inc., a subsidiary of defendant pwc/agility, is service on
managing or general agents of defendant pwc/agility and, thus, constitutes effective
service of process on pwc/agility.
Finally, to the extent that defendant pwc/agility suggests in its brief that only
mr. Alsayed abdulaziz can accept service of process on its behalf, it is mistaken. It
cites no authority in support of such a proposition because there is none. The rule
clearly provides that a managing or general agent, in addition to the person designated
to accept service, can be served with process.
2. The united states served the registered agent of defendant agility
dgs holdings, inc. Which is the alter ego of defendant
pwc/agility
in perfecting service on defendant pwc/agility, the united states served the
registered agent of defendant agility dgs holdings, inc., a subsidiary of defendant
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25
and an alter ego of defendant. While defendant pwc/agility would like this court to
believe that each of the named defendants operated as totally autonomous units, the
defendants’ own documents and statements prove otherwise.
Defendant pwc/agility now claims to this court that it and the other two
defendants are autonomous business entities, but since at least 2006, defendant
pwc/agility went to great lengths to suggest otherwise to the world at large.
Beginning in the fall of 2006, the defendant announced with great fanfare that the pwc
group of companies henceforth would be known as “agility.” in october 2006, tarek
sultan, chairman and managing director of defendant in a message to all employees
announced the new name noting that, “(w)ith the announcement of this exciting, single
global identity, employees and offices around the world will be working in unison as
one team to become market leaders...” see government exhibit i. Less than a month
later, defendant announced the change to the world. The message was sent to
defendant’s u.s. Vendors on the pv contract in an announcement signed by toby
switzer, ceo and president, agility, defense & government services-international,
and maj. General dan mongeon, usa (ret.), president, agility, defense &
government services-us. See government exhibit j. From that point on, defendant
and its subsidiaries have been known as agility. The defendant’s website is
www.agilitylogistics.com. The footer on emails indicated that the “company” was
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26
agility defense and government services which included pwc logistics services.
K.s.c.(c) and agility defense & government services, inc. And their subsidiaries and
affiliates. See government exhibit k.
In january 2006, the defendant requested that there be a name change to the pv
contract as “pwc will complete a corporate reorganization whereby it will consolidate
the performance and administration of its government contracts to pwc logistics
services, a newly created wholly owned subsidiary of pwc.” see government exhibit
l. The defendant also sought a novation agreement with dla seeking to change the
name on the pv contract to agility. See government exhibits m & n. Ultimately,
dla decided against approving the name change or a novation agreement and the
contract remained in the name of defendant pwc.
As far back as 2005, it was pwc logistics, the predecessor to defendant agility
dgs logistics services company, k.s.c.(c) (“agility kscc”), that was taking credit
for holding the pv contract and other contracts awarded by dla. See government
exhibits o and p, pwc logistics awarded dla contract. By 2007, it was agility
defense & government services that was taking credit for holding the pv contract and
other contracts issued and awarded by dla. See government exhibits q,r, s, t, u,
and v; agility dgs awarded $2.8 billion option year on subsistence contract;
agility awarded new contract for the subsistence prime vendor contract; agility
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dgs wins warehousing contract; agility awarded option year on u.s. Army’s
heavy lift vi contract; agility dgs awarded army vehicle storage contracts,
agility dgs wins warehousing contract.
Yet, while the contract itself may be in the name of defendant pwc, the
defendant continues to hold itself out as agility. The defendant has signed contract
modifications in the name of agility. See government exhibit w. It has submitted
invoices to dla in the name of pwc prime vendor and in the name of agility prime
vendor. See government exhibits x.
In october 2008, proposals were due to dla for the award of prime vendor
contract iii (“pv iii”). Pwc, or agility, or agility defense & government services,
or pwc logistics services co. Ksc(c) submitted a proposal on october 2, 2008. The
proposal was signed by daniel g. Mongeon, president & ceo of pwc logistics
services co. Ksc(c). The proposal represented that agility was a “proud partner of
dscp” and “remains committed to the current mission in iraq.” as to agility’s past
performance on the prime vendor contracts, the proposal states that, “agility was
awarded the original prime vendor iraq/kuwait contract in 2003 and has successfully
managed the follow-on contract since 2005.” it goes on to state, “(a)s dscp’s current
pv provider in kuwait, iraq, and jordan...we maintain a record of superior
performance on both government and commercial programs. ... Ultimately, our
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experience will demonstrate that for this critical mission, we are dscp’s proven, lowrisk
partner.” see government exhibit y. Apart from the proposal being signed by
daniel mongeon, the proposal identifies other key personnel, including paul g. Cerjan,
president, agility dgs, middle east, africa, and europe, who also was served with
process. See government exhibit z.
Defendant pwc/agility claims that it and the other two named defendants are
independent entities with separate officers, boards, and books. Yet, agility’s annual
reports contain consolidated financial results and, messrs. Mongeon and hoffman
appeared before and participated in discussions with dla regarding a resolution of this
case. See government exhibit aa.
Defendant pwc/agility cites several cases for the proposition that service on
a subsidiary is not service on the parent. But where the subsidiary is the alter ego of
the parent, service on the subsidiary is effective service on the parent. The united
states submits that given the image and the functional reality that defendant pwc/
agility has created for the world, including with dla and dscp, not only are agility
dgs and agility ksc(c) alter egos of pwc/agility, it appears that one or both have
performed on the various prime vendor contracts held in the name of defendant
pwc/agility. Moreover, the very fact that there is an integrated business unit within
agility identified as agility defense & government services demonstrates both the
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29
unitary nature of defendant pwc/agility’s efforts to secure u.s. Government contracts,
and the control that defendant pwc/agility exercises over the other two defendants
in this case. Illustrative of the level of control is the attached organizational chart that
shows daniel mongeon reporting to toby switzer who
was located in kuwait at defendant pwc/agility’s headquarters. See government
exhibit bb.
In lamb v. Volkswagenwerk ak-tiengesellschaft (vwag), 104 f.r.d. 95 (s.d.
Fl. 1985), defendant vwag sought to quash service of process contending that service
on its u.s. Subsidiary, vwoa, and on ct systems was not effective service on it. In
the case, vwag submitted an affidavit from one of its executives, remarkably similar
to those submitted by messrs. Mongeon, cerjan, and hoffman, claiming that it did not
exercise control over its subsidiary and service on the subsidiary was not service on it.
The court held otherwise finding that vwag maintained a sufficient degree of control
over vwoa that it essentially was nothing more than a department of vwag. Id. At
101. See also united states v. Toyota motor corporation, 561 f. Supp. 354 (c.d. Cal.
1983) (irs enforcement petition was validly served on japanese corporation by
personal service on one of its directors, who was also president of wholly-owned
american marketing subsidiary, in business offices of american subsidiary).
In the instant case, pwc, agility, agility defense & government services,
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30
which is comprised of agility dgs and agility ksc(c), are used interchangeably, and
agility is represented to the world as one unitary entity. While pwc purportedly is
the contractor on the pv contracts, agility, agility defense and government services,
agility ksc(c), and pwc logistics all have taken credit for being the prime vendor
and working with dla and/or dscp. For defendant pwc/agility to now try to tell
this court they are independent companies, belies belief.
In this case, service on agility dgs is service on defendant pwc/agility. In
united states v. Chitron electronics company, ltd., 668 f. Supp.2d 298 (d. Mass.
2009), the defendant shenzen chitron electronics company, ltd. (chitron-china) was
charged with illegally exporting defense articles and technology. Chitron-china
moved to dismiss all charges on the basis of insufficiency of service of process and
lack of personal jurisdiction, even though it had a u.s. Subsidiary, chitron electronic,
inc. (chitron-u.s.) which the government claimed was integrally managed by the
chinese parent. The court denied the defendant’s motion to dismiss, concluding that
the indictment and other evidence provided by the government showed a sufficient
interrelationship between the chinese parent and the u.s. Subsidiary so that service of
the summons on the president of the u.s. Subsidiary was sufficient to effect service on
the foreign parent.
While defendant pwc/agility claims that the chitron case can be distinguished
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31
from the instant case because its subsidiaries are distinct from it, the many admissions
contained in its documents show otherwise. Defendant pwc/agility and its defendant
subsidiaries, since at least the fall of 2006, have held themselves out to be one unitary
entity and all of the defendants at various times have claimed to have been awarded or
to have worked on the prime vendor contracts. Given the unitary nature of the
defendants and their interlocked and interlinked relationships, the instant case is no
different from chitron.
3. Pursuant to fed. R. Crim. P. 4, the united states mailed the
summons to defendant pwc/agility’s principal place of business
in the united states
in addition to serving managing or general agents of defendant pwc/agility and
serving an officer and the registered agent of its agility dgs holdings, the defendant’s
alter ego, the united states mailed the summons to the defendant’s principal place of
business in the united states in alexandria, virginia. The alexandria address is the
location of the defendant’s subsidiary which, as previously discussed is the alter ego
of the defendant. As such, a mailing to that address is a mailing to the principal place
of business of the defendant in the united states as the defendant pwc/agility, by the
time it was indicted, had closed its office in winchester, virginia. As explained
previously, defendant pwc/agility had an office in winchester, virginia, but that
office was closed just after the defendant received a grand jury subpoena from the
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32
grand jury that eventually indicted it. Given the defendant’s action in closing its
winchester, virginia office, the only remaining place of business in the united states
is the alexandria address.
Defendant pwc/agility relies on united states v. Johnson matthey plc, 2007
wl 2254676 (d. Utah 2007), in support of its claims that it has not been properly
served. Chitron, rather than johnson matthey, more appropriately applies in the instant
case. In johnson matthey, the only issue before the court was whether the government
had mailed the summons to the organization’s last known address within the district
or its principal place of business elsewhere in the united states as counsel for the
defendant had accepted service of process. The court concluded that the government
had not perfected service on the defendant because it had not complied with the second
part of fed. R. Crim. P. 4. Without any discussion, the court simply indicated that
service upon the defendant’s subsidiary was not sufficient service on the parent. 2007
wl 2254676 at 4. There is nothing in the decision to indicate whether the government
sought to demonstrate that the subsidiary was the alter ego of the defendant, as has
been demonstrated in the instant case, or that the summons was mailed to the address
of the alter ego subsidiary as it was in the instant case. This is a crucial distinction.
Here, in addition to service on managing or general agents and the defendant’s alter
ego, all of the summons were mailed to the duke street address of agility in
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33
alexandria, virginia. Agility regularly issued press releases from the alexandria
address, and the predecessor to defendant agility ksc(c) announced to the world that
its new offices at duke street in alexandria, virginia officially opened in august 2006.
See government exhibit cc. Thus, mailings to the alexandria address, the only
address for defendants in the united states, satisfied the second part of fed. R. Crim.
P. 4.
C. The united states is entitled to enforce its criminal laws against
foreign nationals for conduct committed in the united states and with
respect to u.s. Government contracts executed and issued in the united
states
defendant pwc/agility suggests that merely because it is a kuwaiti corporation
that it should not be subject to the jurisdiction of this court and that any action taken
against it might have “foreign relations concerns.” a review the factual context of the
prime vendor contracts highlights the weaknesses in defendant’s argument. First,
defendant pwc/agility is the prime vendor on contracts with instrumentalities of the
united states, specifically dla and dscp. Defendant pwc/agility submitted its
proposals, not in kuwait, but in the united states at philadelphia, pennsylvania;
defendant pwc/agility had a partner, at least on pv i, that is a u.s. Corporation;
defendant pwc/agility had an office and employees in the united states at least until
it abandoned the office and sent the employees to kuwait, after it learned it was the
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 33 of 39
7 in hijazi, the seventh circuit issued a writ of mandamus ordering the
district court to rule on the defendant’s motions to dismiss the indictment. On
remand, the magistrate judge recently recommended to the district court that it
deny hijazi’s motions to dismiss.
34
focus of a criminal investigation; defendant pwc/agility’s officers and employees
made frequent visits to the united states regarding the prime vendor contracts;
defendant pwc/agility’s employees, even now, have contacts virtually every day with
dscp personnel who are located in philadelphia, pennsylvania; defendant
pwc/agility submitted billings almost daily to dscp in philadelphia, pennsylvania;
and all of the prime vendor contracts contained “buy american” provisions that
required prime vendors to purchase foodstuffs from u.s. Companies and for those
products to be shipped on u.s. Flagged vessels requiring frequent, if not daily, contacts
by defendant pwc/agility’s employees with u.s. Companies and with personnel of the
defense transportation system (“dts”) in the united states.
Moreover, much of the alleged illegal conduct in the indictment took place in
the united states, including the northern district of georgia. In short, this criminal
case is not about an effort to apply the criminal laws of the united states beyond our
borders but about alleged criminal conduct on these shores.
Defendant pwc/agility emphasizes the case in re hijazi, 589 f.3d 401(2009),
and seeks to equate its situation to that of the defendant in hijazi.7 other than the fact
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 34 of 39
35
that both cases involve kuwaiti residents, the cases are nothing alike. The defendant
in hijazi was not in privity of contract with the united states, had been to the united
states only once in an unrelated visit some eight years before the conduct alleged in
the indictment, and, at least as the defendant argued, had no other contact of any sort
with the united states. In stark contrast, defendant pwc/agility was and is the prime
vendor on contracts with the united states government that have generated payments
to defendant pwc/agility of more than $8.5 billion and over the years and, even now,
defendant has frequent, if not daily, contacts with dscp, dts, and vendors in the
united states. In addition, defendant pwc/agility and the other defendants have
numerous other contracts with the united states government.
While the kuwaiti government has expressed some interest in this matter, it is
nothing like that it expressed in the hijazi case. In hijazi, the kuwaiti government
made several demands that the criminal case be dismissed and that hijazi not be
prosecuted in the united states. In contrast, in the instant case, the kuwaiti
government has made one rather tepid written inquiry about this matter expressing
interest in an “amicable settlement.” and, assuming for the sake of argument, as the
kuwaiti government asserts that “in accordance with kuwaiti laws, kuwaiti courts
have exclusive jurisdiction over all criminal and civil cases related to contracts
executed in the state of kuwait with kuwaiti companies,” that most assuredly does not
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 35 of 39
36
describe the case before this court.
Further, while defendant pwc/agility argues that this court cannot or should
not exercise jurisdiction over it because of “foreign relations concerns,” it is not at all
reluctant to seek relief from u.s. Courts when it contends that it is the injured party.
As detailed above, in just the last three years, defendant pwc/agility or its subsidiaries
have filed at least five lawsuits in u.s. Courts. When it feels that it is the injured party,
defendant pwc/agility has no compunction about seeking relief in u.s. Courts. Now,
however, when it faces fraud charges in a u.s. Court, pwc/agility suggests dire
consequences if this court acts on those charges and claims that this court cannot
exercise jurisdiction over it.
Finally, defendant pwc/agility, claiming other “foreign relations concerns,”
alleges that the united states engaged in a ruse to lure ahmed alsayed abdulaziz, the
only person in a company of 37,000 designated to accept service of process on behalf
of defendant pwc/agility, to the u.s. Embassy in kuwait to serve him with process.
There is absolutely no truth to the allegations, and the united states can only conclude
that mr. Alsayed abdulaziz is hopelessly mistaken or confused and apparently has
submitted a mistaken or even false affidavit in support of his employer’s motion. No
one working on this case on behalf of the united states, including the prosecutors and
the agents assigned to this matter, including agents from the federal bureau of
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 36 of 39
37
investigation, the defense criminal investigative service, the army criminal
investigative command, or anyone acting on their behest, made any attempt to lure mr.
Alsayed abdulaziz to the united states embassy in kuwait or tried to serve him with
any process at any time. See government exhibit dd. In an effort to further
investigate this claim, the united states requested defendant pwc/agility provide the
telephone number of mr. Abdulaziz. With that telephone number, the united states
could have checked embassy records to see if any calls were placed from the u.s.
Embassy to mr. Abdulaziz’s telephone number. Defendant pwc/agility has not
responded to the request of the united states and apparently has no intention of
providing the requested telephone number.
Given defendant pwc/agility’s lack of a response, one can only assume that the
defendant does not want its claims of a ruse fully investigated and that the affidavit of
mr. Abdulaziz may well be false. If that is so, it would not be the first time that an
employee of defendant pwc/agility has made or encouraged others to make spurious
allegations in litigation. See government exhibit ee.
There was no ruse directed at defendant pwc/agility and this prosecution does
not unduly impact foreign relations.
Case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 37 of 39
38
iii. Conclusion
for the foregoing reasons, the united states respectfully requests that this court
deny defendant pwc/agility’s amended motion to quash service of process. If the
court concludes that the united states has not properly served defendant pwc/agility,
the united states requests that it be allowed time to attempt service of process through
diplomatic channels with the assistance of the state department of the united states.
Respectfully submitted,
f. Gentry shelnutt
acting united states attorney
/s/barbara e. Nelan
assistant u.s. Attorney
georgia bar no. 537537
/s/richard e. Reed
special assistant u.s. Attorney
georgia bar no. 597745
75 spring street s.w.
Suite 600
atlanta, ga 30303
404-581-6000
fax 404-581-6181
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 38 of 39
39
certificate of service
this is to certify that i have this day served upon the persons listed below a copy
of the foregoing document electronically:
Richard h. Deane, jr., esq.
Anne moody johnson, esq.
David j. Bailey, esq.
Jones day
1420 peachtree street, ne
suite 800
atlanta, ga 30309-3053
counsel for public warehousing company k.s.c.
Tom bever, esq.
Brian mcevoy, esq.
William w. Fagan, iii, esq.
Chilivis cochran larkins & bever
3127 maple drive, ne
atlanta, ga 30305
counsel for agility dgs holdings, inc.
Richard w. Hendrix, esq.
Finch mccranie
225 peachtree street, ne
1700 south tower
atlanta, ga 30303
counsel for agility dgs logistics services company, k.s.c. (c)
this 21st day of june, 2010.
/s/barbara e. Nelan
assistant united states attorney
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 39 of 39

يعطيك العافيه

 

[q8_king1]

السوق اليوم كلة اخضر ماعدا اجيليتي علي انخفاض ماهو السبب ؟

 

[رجل مبتدئ]

سهم دايخ مع احترامي للسيد طارق السطان

 

[sef]

الوثيقه من المحكمه يا ليت واحد يعطينا الزبده
تقبلو تحياتي
in the united states district court
for the northern district of georgia
atlanta division
united states of america : Criminal indictment
v. :
: No. 1:09-cr-0490-ajb-twt
the public warehousing :
Company, k.s.c., a/k/a agility; : First superseding
agility dgs holdings, inc., :
F/k/a agility defense & :
Government services, inc., :
F/k/a pwc logistics services, inc.; :
Agility dgs logistics services :
Company, k.s.c.(c), d/b/a and f/k/a :
Pwc logistics services k.s.c.(c); :
Defendants.
United states’ brief in opposition to defendant public
warehousing company k.s.c.,a/k/a agility’s amended
motion to quash service of process on indictment
now comes the united states, by its attorneys, f. Gentry shelnutt, acting
united states attorney for the northern district of georgia with respect to this matter,
barbara e. Nelan, assistant united states attorney, and richard e. Reed, special
assistant united states attorney, and hereby submit this brief in opposition to
defendant public warehousing company k.s.c., a/k/a agility’s (“pwc/agility”)
amended motion to quash service of process on the indictment and superseding
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 1 of 39
1 pwc/agility original motion- doc. 25; pwc/agility amended motion-
doc. 54; pwc/agility brief in support of motion- doc. 51.
2 during the relevant period of time, pwc/agility by and through
subsidiaries, had numerous contract with the united states in addition to the three
prime vendor contracts that are the subject of the present case.
2
indictment.1 the defendant’s motion, as amended, should not even be considered by
this court, but, if it is, it should be denied as the defendant has been properly served
pursuant to fed. R. Crim p. 4.
Defendant pwc/agility has received over $8.5 billion from the united states
pursuant to three prime vendor contracts2 issued by the department of defense. It
frequently has taken advantage of courts of the united states to sue agencies of the
united states and has regular, almost daily, contacts with the united states and has for
the last six years. On november 17, 2009, after it was indicted and charged with
conspiring to defraud the united states and engaging in multiple fraudulent schemes
in connection with its overcharging for providing troop support services to the united
states during operation iraqi freedom, in a press release that it issued worldwide, it
denied the charges and asserted that it looked forward to its day in this court. Now that
it is faced with that prospect, it has retreated to the safe haven of kuwait. Defendant
pwc/agility contemptuously contends that it is not subject to the laws or courts of the
united states.
Case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 2 of 39
3
pwc/agility is a fugitive from american justice, and this court should not
entertain its motion to quash. A corporation, such as pwc/agility, who has amassed
sizeable profits from contracting with and overcharging the united states during
operation iraqi freedom and who seeks to invoke the processes of the united states
law when it suits pwc/agility while flouting those very same laws, simply is not
entitled to call upon the resources of this court for determination of its motion.
I. Background
in march 2003, the united states and its coalition partners launched operation
iraqi freedom, following in the tank tracks of operation desert storm. The troops in
operation iraqi freedom were supported by, among others, the defense logistics
agency (dla), a logistics combat support agency within the department of defense,
and the defense supply center philadelphia (dscp), the troop support center agency
of the dla. Dscp is the center for managing four major commodities: Medical
material, subsistence/garrison feeding, construction and equipment, and clothing and
textiles. Dscp also is responsible for managing dod’s prime vendor contracts within
those commodities, including prime vendor contracts for subsistence/garrison feeding
for military personnel located in the middle east.
As part of its mission of supporting troops worldwide, in particular in the middle
east, dscp issued solicitations for the acquisition of foodstuffs and non-food items
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 3 of 39
4
for various parts of the middle east, including iraq, kuwait, and jordan. These
solicitations sought proposals to provide foodstuffs and non-food items pursuant to
prime vendor contracts.
On may 10, 2002, dscp issued solicitation spo300-02-r-4003 to establish
contracts with prime vendors to provide food and non-food products to the military and
other authorized customers of the dla in three overseas european zones, including
zone iii-the middle east. This solicitation was for a one-year base period, up to four
one-year options, and had an estimated total acquisition value of $111,959,520.
Defendant pwc/agility submitted a proposal and on may 28, 2003, dscp
issued a notice of award to defendant pwc awarding it contract spo300-03-d-3061,
which was known as prime vendor i (pv-i), to provide full-line food and non-food
distribution in zone iii (kuwait and qatar). On june 27, 2003, dscp issued
modification p00001 to pv-i, creating an iraqi deployment zone and providing that
defendant pwc would also provide food and non-food items to the military in iraq.
This modification provided that the maximum total acquisition value limit of pv-i
could increase by as much as 1200% over the estimated contract dollar value.
Thereafter, while dscp was in the process of soliciting proposals for a new
prime vendor contract in the middle east, on february 16, 2005, defendant
pwc/agility was awarded contract spm300-05-d-3119 (also known as modification
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 4 of 39
5
p00036 to pv-i). This “bridge contract” provided for continued prime vendor
operation under the terms and conditions of pv-i through december 15, 2005.
On september 3, 2004, dscp issued solicitation spm300-04-r-0323 to
establish a prime vendor contract for the acquisition of food and non-food items for the
military and other authorized customers in several middle eastern zones, including
zone i comprised of iraq, kuwait, and jordan.
On november 16, 2004, defendant pwc provided its initial proposal and on july
7, 2005, dscp awarded contract spm300-05-d-3128, known as prime vendor ii
(pv-ii), to pwc to provide food and non-food items to the military and other
authorized customers in zone i. The estimated value of the award over the life of the
contract with options was $4,668,890,200.
Over the duration of the three prime vendor contracts defendant pwc/agility
has been paid at least the following approximate amounts: Pv-i- $934,000,000;
bridge- $1 billion; pv-ii- $6.6 billion.
All of the prime vendor solicitations were issued from the united states, the
offerors were required to submit their proposals to dscp in the united states, and the
contracts awarded to “prime vendors” pursuant to the solicitations were executed in
the united states. In addition, the prime vendor contracts contained a “buy american”
provision that required, with some exceptions, that all foodstuffs provided pursuant to
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 5 of 39
3 as demonstrated in government exhibit a, pwc/agility used the trade
name of “pwc logistics” in the performance of the prime vendor contracts.
6
the prime vendor contracts come from united states’ vendors and that all foodstuffs
provided be shipped on u.s. Flagged vessels.
Apart from regular, frequent, often every-day, contacts that defendant
pwc/agility had with dscp and with vendors here in the united states, the defendant
had a staffed office in winchester, virginia. The office was opened in the spring of
2004, although a formal lease was not executed until the fall of 2004. While the lease
agreement continued until the fall of 2008, the office was abandoned in the spring of
2008, just after defendant pwc received the initial subpoena from the grand jury that
ultimately indicted it . See government exhibit. A3 and b.
Pwc/agility knew about the impending original indictment as early as october
23, 2009. On that day, in an e-mail communication, counsel for the united states
asked pwc/agility counsel to "identify a pwc representative who will accept a
summons with respect to an initial appearance /arraignment." on october 30, pwc's
counsel responded in relevant part that: "i spoke with sam mccahon [pwc internal
counsel] regarding the availability of someone to receive a summons on behalf of
pwc. He noted that pwc's senior staff travels a great deal and often on short notice,
so it is it [sic] not always predictable as to who will be where at a particular time. He
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 6 of 39
4 see exhibit k to pwc/agility brief.
7
did note that if you can provide perhaps as little as a week's notice, he should be able
to specify someone for your purposes, if not himself."
prior to its indictment, pwc/agility had accepted service of both civil and grand
jury subpoenas through one of its united states based counsel. On november 9, 2009,
a grand jury sitting in this district issued an indictment against the defendant. That
indictment was unsealed on november 16, 2009. After the indictment was unsealed,
early monday morning, november 16, 2009, federal agents for the government went
to the office of pwc's counsel in atlanta, georgia. While the summons and
indictment were left at atlanta counsel's location, the agents were told that counsel
would not accept service on behalf of pwc. Less than ten days later, pwc’s board
of directors passed a resolution stating in relevant part that “pwc has determined that
it is in the best interest of pwc to appoint a single officer to acknowledge or receive
service of lawful process for and on behalf of pwc in any action against pwc
instituted in any court of any jurisdiction.” the resolution went on state that pwc did
“appoint and authorize ahmed alsayed abdulziz as the only officer of [pwc] to
acknowledge service of lawful process,” of a purported worldwide pwc workforce
of 37,000. 4 conveniently, it appears that ahmed alsayed abdulziz has no intention
of being physically present anywhere other than in kuwait. Moreover, contrary to the
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 7 of 39
8
october communications noted above, sam mccahan, pwc/agility’s internal counsel,
has never identified any of the well traveled pwc /agility senior staff that would make
themselves available for service.
To further avoid service of the summons that it is fully aware of, after indictment
pwc/agility has sought safe passage (i.e. An agreement to not serve the summons or
any other process) for its employees entering the united states. Given this conduct of
pwc/agility the government, as more fully explained in the next section of this brief,
identified persons who acted as managing or general agents for the defendant and
served those individuals with process.
Ii. Argument
a. This court should not entertain the motion of a fugitive
defendant pwc/agility is a fugitive from justice. As discussed below,
precedent deprives a fugitive of judicial process if it is not willing to likewise grace the
criminal courts with its presence. This court should invoke the fugitive disentitlement
doctrine and not even consider the defendant’s request for relief.
The basis for the fugitive disentitlement doctrine is that a “fugitive from justice
has demonstrated such disrespect for the legal processes that [it] has no right to call
upon the court to adjudicate [its] claim.” ortega-rodriguez v. United states, 507 u.s.
234, 246-47 (1993). See also molinaro v. New jersey, 396 u.s. 365, 366 (1970).
Case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 8 of 39
9
the goal of the fugitive disentitlement doctrine is not so much to punish the fugitive,
but rather to eliminate the possibility of “heads i win, tails you’ll never see me again”
litigation, wherein the fugitive could enjoy the results of a victory while ignoring (and
by its conduct, effectively negating) the consequences of defeat. As the eleventh
circuit stated, “the rationales for this doctrine include the difficulty of enforcement
against one not willing to subject himself to the court's authority, the inequity of
allowing that ‘fugitive’ to use the resources of the courts only if the outcome is an aid
to him, the need to avoid prejudice to the non-fugitive party, and the discouragement
of flights from justice.” united states v. Barnette, 129 f.3d 1129, 1183 (11th cir. 1997)
(citing molinaro, 396 u.s. At 366). “while such [fugitive status] does not strip the
case of its character as an adjudicable case or controversy . . . It disentitles the
defendant to call upon the resources of the court for determination of his claims.”
molinaro, 396 u.s. At 366.
The fugitive disentitlement doctrine is based on equitable principles, see united
states v. Sharpe, 470 u.s. 675, 681 n.2 (1985). The equities in this case tilt
overwhelmingly in favor of invoking the doctrine and dismissing defendant
pwc/agility’s motion to quash. In fact, the temerity of this defendant is breathtaking.
• defendant pwc/agility has received over $8.5 billion dollars
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 9 of 39
10
($8,500,000,0000) of united states taxpayers’ monies pursuant to
numerous prime vendor contracts and now seeks to evade litigating
criminal conduct over its overcharging the united states for the
performance of these contracts.
• defendant pwc/agility has previously sought relief from numerous u.s.
Courts when it contends that it is the injured party; yet, it continues to
avoid service of process. For example, in just the last three years,
pwc/agility or its subsidiaries have filed lawsuits in several u.s. Courts
including: (1) a case filed in the united states district court for the
district of columbia seeking a tro and preliminary injunction to block
the defense logistics agency from suspending them as a result of the
indictment; (2) a freedom of information act case filed in the united
states district court for the district of columbia in which pwc/agility
is seeking the government’s price negotiation memoranda regarding pv
i and ii; (3) a case filed in the united states district court for the district
of columbia in which pwc/agility challenged an adverse past
performance determination and, when the case was dismissed,
pwc/agility refiled it in the united states court of claims; (4) an appeal
to the armed services board of contract appeals in which pwc/agility
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 10 of 39
11
seeks a contract interpretation decision that it can retain “prompt
payment” discounts under the pv contracts; and (5) an appeal to the
armed services board of contract appeals in which pwc/agility claims
that it is owed additional monies for the use of trucks pursuant to one of
the pv contracts. In addition to availing itself of the jurisdiction of
united states tribunals when wanted to do so to its economic advantage,
pwc/agility has accepted service of process of civil and criminal
subpoenas, but only before it was indicted.
• defendant executed the contracts related to this matter and had almost
daily contact within the united states as part of its performance of these
contract.
• defendant pwc/agility boasts repeatedly in the media that it wishes to
vindicate its reputation in this court by fully litigating this case, yet it
remains a fugitive, trying to litigate its claims in the court of public
opinion, while attempting to evade this court of law.
• on the heals of the indictment, defendant pwc/agility approved a
measure that only one person could accept process on its behalf and the
person it approved is outside the united states. To further avoid service
of the summons, post-indictment , pwc/agility has sought and received
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 11 of 39
12
safe passage for its employees to meet with dla officials at a food
service meeting.
In all candor, the government is hard-pressed to find any equitable factor that would
weigh in defendant pwc/agility’s favor.
The threshold question that this court must determine is whether defendant
pwc/agility is a fugitive. Whether any given defendant is a fugitive from justice is
a question of fact to be determined by the acts and intent of that defendant. The
government readily concedes that mere absence from the jurisdiction in which a crime
occurred does not render a suspect a fugitive from justice. Rather, the government must
prove by preponderance of the evidence that the defendant “absented [it]self from the
jurisdiction with the intent to avoid prosecution.” united states v. Fonseca-machado,
53 f.3d 1242, 1244 (11th cir.1995). However, the eleventh circuit has made clear
that “intent to flee from prosecution or arrest may be inferred from a person’s failure
to surrender to authorities” once the defendant learns of the charges while outside of
the jurisdiction. United states v. Barnette, 129 f.3d 1179, 1184 (11th cir. 1997). The
courts have not read the requirement of fugitive status in an overly technical manner,
but have aimed to sweep up defendants “who know that they are subject to arrest in
this country” yet have not subjected themselves to criminal process.” collazos v.
United states, 368 f.3d 190, 197 (2nd cir. 2004) ; see also brin v. Marsh, 596 f.supp.
Case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 12 of 39
13
1007, 1010 (d.d.c.1984) (applying “fugitive from justice” doctrine to court-martialed
soldier who remained “at large,” though somewhere in the united states); united
states v. Eng, 951 f.2d 461, 464 (2d cir.1991)(“a defendant is a fugitive from justice
when he ‘actively resists returning from abroad to face [criminal] charges.’ ”); united
states v. Contents of account number 68108021, 228 f.supp.2d 436, 443
(s.d.n.y.2002) (claimant was fugitive where she knew she was subject to arrest but
“declined to face the charges against her”). Thus, the critical element of proof is
knowledge of a pending charge.
It is beyond peradventure that defendant pwc/agility has knowledge of, and
indeed a copy of the original indictment, the superseding indictment, and the
summons. In fact, there is some indication that defendant pwc/agility has been
planning its flight from justice for some time, well before the actual return of the
original indictment. Defendant pwc/agility had an office in the united states at
winchester, virginia and employees in the united states, but the office was
permanently closed and the employees were sent back to what defendant pwc/agility
clearly hoped was the safe haven of kuwait, even before its lease expired, after the
defendant received the initial grand jury subpoena from the very grand jury that
eventually indicted it.
The criminal investigation of and charges against defendant pwc/agility has
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 13 of 39
5 pwc/agility’s knowledge of the indictments and summons as well as its
intent to avoid service is evidenced by its corporate resolution ten days after the
indictment was unsealed which attempts to limit who can accept service on behalf
of the company to one inaccessible person, and its avoidance of employee travel
into the united states without an agreement that they not be served with process.
14
received substantial media coverage. In fact, defendant pwc/agility acknowledged
the indictment by passing a measure that limited service of process to only one
individual who remains outside the united states. It is apparent from this coverage
that the news has reached kuwait where defendant pwc/agility is located. The
chairman of the board of defendant pwc/agility has made numerous comments
reported in the media about the case and boasted about vigorously defending the
charges in this court. In addition, defendant pwc/agility’s attorneys (and there are
many) have represented that they have conveyed messages about the charges to
defendant pwc/agility’s board of directors. From this alone, it is clear that defendant
pwc/agility has actual knowledge of the indictment, the superseding indictment and
the summons to appear in court.5
courts frequently have invoked the fugitive disentitlement doctrine to deny
defendants the benefit of the courts’s power and possible relief without facing any of
the attendant risk, and they have done so in the context of pretrial motions like that
filed by defendant pwc/agility. In united states v. Kashamu, 656 f. Supp. 2d. 863
(n.d. Ill. 2009), the court refused to consider the defendant’s motion to quash arrest
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 14 of 39
15
and dismiss indictment because the defendant was a fugitive and refused to submit
himself to the jurisdiction of the court. In invoking the fugitive disentitlement doctrine
and refusing to consider the defendant’s motion, the court noted that, “(c)ourts are
reluctant to afford fugitive defendants the benefits of a potential legal victory when
these defendants face no adverse consequences from unfavorable rulings. Id. At 866.
Similar results were reached in united states v. Adamov, 2008 wl 1943550 (w.d. Pa.
2008)(court refused to allow defendant to make special appearance for limited purpose
of moving to dismiss indictment as russia refused to extradite defendant to face
charges in united states); united states v. Nabepanha, 200 f.r.d. 480, 483 (s.d. Fl.
2001)(court denied defendant’s motion for discovery because defendant was fugitive
from justice and a fugitive’s absence does not “entitle him to an advantage”). See also
united states v. Fonseca-machado, 53 f.3d 1242, 1244 (11th cir. 1995)(statute of
limitations tolled while defendant was fugitive from justice). But see in re hijazi, 589
f. 3d 401 (7th cir. 2009)(appellate court issued writ of mandamus ordering district
court to rule on motion to dismiss indictment by defendant, a lebanese national who
was a resident of kuwait, even though defendant refused to surrender to u.s.
Authorities and be arraigned); united states v. Noriega, 683 f. Supp 1373(s.d. Fl.
1988)(given unique status of defendant as head of state, court agreed to consider
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6 while the united states has been unable to find a case identical to the
situation here, congress in 2000, in conjunction with a comprehensive revision of
civil asset forfeiture laws, specifically conferred statutory authority on federal
courts to order disentitlement in civil forfeiture cases. See 28 u.s.c. § 2466.
Significantly, congress specifically authorized disentitlement to apply to
corporations. See united states v. $6,976,934.65, 554 f. 3d 123 (d.c. Cir. 2009),
for a discussion of application of cafra and the doctrine to a corporation.
16
defendant’s motion to dismiss indictment, even though he was a fugitive). 6
while this court has discretion to allow defendant pwc/agility to specially
appear and contest service, this case is not like noriega or even hijazi; rather, the
court should invoke the fugitive disentitlement doctrine and refuse to consider the
defendant’s motion. Unlike in noriega, this case does not involve the unique situation
of prosecuting a head of state. As more fully discussed below, other than the fact that
this case and the hijazi case involve kuwaiti residents, this case is nothing like hijazi.
The defendant in hijazi was not in privity of contract with the united states, had been
to the united states only once in an unrelated visit some eight years before the conduct
alleged in the indictment, and, at least as the defendant argued, had no other contact of
any sort with the united states. In stark contrast, defendant pwc/agility was and is
the prime vendor on multi-billion dollar contracts with the united states government
that have generated payments to defendant pwc/agility of more than $8.5 billion and
over the years and, even now, defendant has frequent, if not daily, contacts with
various agencies of the united states, including dscp, dts, and private vendors in
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17
the united states. In addition, defendant pwc/agility and the other defendants have
numerous other contracts with the united states government. Here the defendant
asserts that this court does not have jurisdiction over it, but that is because the
defendant refuses to submit to the court’s jurisdiction. See united states v. Eagleson,
874 f.supp. 27, 31 (d. Mass. 1994) (canadian citizen and fugitive could not rely on
self-created absence to support motion to vacate restraining order and lis pendens).
Defendant pwc/agility is trying to use this court’s process as a sword, while at the
same time attempting to shield itself from this court’s process. Such conduct simply
stated is unfair and should not be countenanced. See united states v. One lot of u.s.
Currency, 628 f. Supp. 1473, 1476 (s.d. Fl. 1986).
B. Defendant pwc was properly served with process pursuant to fed. R.
Crim. P. 4 as the united states served several of its managing or general
agents, an alter ego of the defendant, and also mailed process to the
defendant’s principal place of business in the united states
contrary to its claims, defendant pwc/agility was properly served with process
pursuant to fed. R. Crim. P. 4. Fed. Rule crim. P. 4 (arrest warrant or summons on
a complaint) provides in pertinent part at subpart (c)(3)(c):
A summons is served on an organization by delivering a copy to
an officer, to a managing or general agent, or to another agent appointed
or legally authorized to receive service of process. A copy must also be
mailed to the organization's last known address within the district or to its
principal place of business elsewhere in the united states.
The united states served not one, but three of the defendant’s managing or
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18
general agents with service of process. The united states also served the registered
agent of defendant agility dgs holdings, inc., the alter ego of defendant pwc/agility
here in the united states. Finally, the united states mailed the process to
pwc/agility’s only place of business in the united states in alexandria, virginia.
1. The united states served managing or general agents of the
defendant
the united states submits and pwc/agility does not dispute that daniel
mongeon, paul cerjan, and edward hoffman were served with summons for each of
the named defendants, including defendant pwc/agility. As the affidavits of these
individuals attest, they each received summons for the named defendants with respect
to the superseding indictment. ( see affidavits b, d, and f attached to defendant
pwc/agility’s amended motion to quash). While defendant contends that none of
these individuals are officers of defendant pwc/agility, the united states submits that
all of them were managing or general agents of defendant pwc/agility at the time of
the service of process and service on them comports with fed. R. Crim. P. 4.
In december 2005, toby switzer of defendant pwc advised dscp that mr.
Mongeon was “joining pwc.” see government exhibit c. Daniel mongeon joined
pwc logistics as a vice president, defense & government services. Later that year,
he was promoted to president of agility dgs and in that capacity, met with dscp
regarding the prime vendor contracts. See government exhibit d.
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19
prior to his hiring by agility, daniel mongeon had been a major general in the
army serving as the director of operations of dla and was the commander of dscp.
On july 16, 2008, agility announced that mr. Mongeon was being named the ceo of
its defense & government services business group succeeding toby switzer who was
assuming a new advisory role. At the time of the appointment, the largest contract held
by mr. Mongeon’s group was the pv contract. See government exhibit e.
When the wall street journal reported on the investigation of pwc on january
15, 2008, agility and pwc issued what it called a “correction to the wall street
journal article on january 15, 2008" and in the correction began by saying, “retired
army maj. Gen. Dan mongeon, now at public warehousing co. Of kuwait, was a
commander of the defense supply center from 1998 to 2000.” see government
exhibit f.
Recently, when agility announced that it was not being awarded pv iii, the
announcement was issued to all agility employees by mr. Mongeon, identified as the
president and ceo of agility dgs holdings. The announcement noted that the
“company has been planning and adjusting for the potential loss of the prime vendor
revenue...” and added, “we won the first prime vendor contract in 2003.” it added that
“i want to thank you for the extraordinary commitment... And it is that commitment,
along with the assets and experience we put behind prime vendor, that will drive
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20
agility’s success...” see government exhibit g.
Shortly after mr. Mongeon’s promotion in 2008, on july 21, 2008, agility
announced the appointment of paul cerjan as the president of agility defense &
government services. Like mr. Mongeon, mr. Cerjan also has acted as an agent for
defendant pwc/agility. At the time of his retirement from the military, mr. Cerjan
was an army lt. General. The announcement indicated that cerjan “will be based in
kuwait and will be responsible for agility dgs’s prime vendor contract, that covers
the supply of most food items to u.s. Troops in iraq and kuwait. See government
exhibit h.
As to mr. Hoffman, edward hoffman is the vice president and general counsel
for agility dgs. Before he started working for agilty, he was in private practice
working on agility matters and also had several positions with dla. See government
exhibit d. Moreover, at various times since the onset of the investigation and the
subsequent indictments, both messrs. Mongeon and hoffman have met with and
discussed with dla a possible settlement of this case. In fact, both messrs. Mongeon
and hoffman, met with dla to discuss this case at a time when pwc/agility was the
only defendant.
While the united states could find no cases discussing service of process on a
general or managing agent in a criminal case, there are numerous cases that discuss
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21
such service in a civil case. Those cases demonstrate that messrs. Mongeon, cerjan,
and hoffman are general or managing agents of defendant pwc/agility.
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22
the determination whether an individual is a “managing or general agent”
depends on a factual analysis of that person’s authority within the organization.
Gottlieb v. Sandia american corporation, 452 f.2d 510, 513 (3rd. Cir. 1971). A
person not in charge of a corporation’s activities... May still qualify as a general or
managing agent for the purpose of rule 4(d)(3) if his position is one of sufficient
responsibility so that it is reasonable to assume he will transmit notice of the
commencement of the action to his organizational superiors. Alloway v. Wain-roy
corporation, 52 f.r.d. 203, 204 (e.d. Pa. 1971), (citing remington rand, inc. V.
Knapp-monarch company, 139 f. Supp. 613, (e.d. Pa. 1956)). Messrs. Mongeon,
cerjan, and hoffman all fit that description, and all clearly transmitted the process to
organizational superiors. As the court recognized in boryk v. The dehavilland aircraft
co., 341 f.2d 666, (2nd cir. 1965), in finding that the plaintiff had properly served a
managing agent:
That fossett or inc. Was not explicitly labeled “managing agent” by
ltd. Or authorized (by it) to accept service of process...is not decisive.
Here, as throughout the area of jurisdiction, the realities and not just the
formalities must be dealt with. ...ltd.’s timely answer indicates that it was
not prejudiced by the actual method of service. Specification of the
proper recipients of process is made to ensure that there will be actual
notice to the responsible officers. That purpose has been served.
Id. At 668-669 (internal citation omitted); see also estates of ungar v. The palestinian
authority, 153 f. Supp.2d 76 (d. R.i. 2001) (administrator of estates of decedents who
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23
were killed in israel by terrorist group hamas properly served palestinian authority
and palestine liberation organization as persons served were individuals with the
authority to exercise independent judgment and discretion in the performance of duties
and thus were managing or general agents of entities).
In heise v. Olympus optical company, ltd., 111 f.r.d. 1, (n.d. Ind. 1986), the
plaintiff filed suit for a personal injury suffered during a physician’s use of a medical
instrument manufactured by the defendant ooc, ltd., a japanese corporation, and
distributed in the united states by its subsidiary, oc/america. Ooc, ltd. Was not
incorporated in the united states and had its principal place of business in tokyo,
japan. Oc/america had its principal place of business in new york. The complaint
was served by certified mail on an officer of oc/america in new york. The japanese
parent filed a motion to dismiss for insufficiency of service of process contending that
service on an officer of the u.s. Subsidiary was not effective service on the japanese
parent.
While acknowledging that a parent/subsidiary relationship, standing alone, is
insufficient for purposes of establishing jurisdiction, the court concluded that service
on the group vice president of the u.s. Subsidiary, a person whose position was one
of sufficient responsibility that it was reasonable to assume that he would transmit
notices to occ, ltd., the japanese parent, was service on a managing or general agent
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24
within the meaning of fed. R. Civ. P. 4(d)(3). Id. At 6.
Service of process on daniel mongeon, who is the president and ceo of agility
dgs holdings, inc. And the managing director of agility dgs logistics services
ksc(c), both of which are subsidiaries of defendant pwc/agility; on paul cerjan, the
president of a business unit of agility dgs logistics services company ksc(c) which
agility, more than once, has identified as having performed on the prime vendor
contracts; and on edward hoffman, the senior vice president and general counsel for
agility dgs holdings, inc., a subsidiary of defendant pwc/agility, is service on
managing or general agents of defendant pwc/agility and, thus, constitutes effective
service of process on pwc/agility.
Finally, to the extent that defendant pwc/agility suggests in its brief that only
mr. Alsayed abdulaziz can accept service of process on its behalf, it is mistaken. It
cites no authority in support of such a proposition because there is none. The rule
clearly provides that a managing or general agent, in addition to the person designated
to accept service, can be served with process.
2. The united states served the registered agent of defendant agility
dgs holdings, inc. Which is the alter ego of defendant
pwc/agility
in perfecting service on defendant pwc/agility, the united states served the
registered agent of defendant agility dgs holdings, inc., a subsidiary of defendant
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25
and an alter ego of defendant. While defendant pwc/agility would like this court to
believe that each of the named defendants operated as totally autonomous units, the
defendants’ own documents and statements prove otherwise.
Defendant pwc/agility now claims to this court that it and the other two
defendants are autonomous business entities, but since at least 2006, defendant
pwc/agility went to great lengths to suggest otherwise to the world at large.
Beginning in the fall of 2006, the defendant announced with great fanfare that the pwc
group of companies henceforth would be known as “agility.” in october 2006, tarek
sultan, chairman and managing director of defendant in a message to all employees
announced the new name noting that, “(w)ith the announcement of this exciting, single
global identity, employees and offices around the world will be working in unison as
one team to become market leaders...” see government exhibit i. Less than a month
later, defendant announced the change to the world. The message was sent to
defendant’s u.s. Vendors on the pv contract in an announcement signed by toby
switzer, ceo and president, agility, defense & government services-international,
and maj. General dan mongeon, usa (ret.), president, agility, defense &
government services-us. See government exhibit j. From that point on, defendant
and its subsidiaries have been known as agility. The defendant’s website is
www.agilitylogistics.com. The footer on emails indicated that the “company” was
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26
agility defense and government services which included pwc logistics services.
K.s.c.(c) and agility defense & government services, inc. And their subsidiaries and
affiliates. See government exhibit k.
In january 2006, the defendant requested that there be a name change to the pv
contract as “pwc will complete a corporate reorganization whereby it will consolidate
the performance and administration of its government contracts to pwc logistics
services, a newly created wholly owned subsidiary of pwc.” see government exhibit
l. The defendant also sought a novation agreement with dla seeking to change the
name on the pv contract to agility. See government exhibits m & n. Ultimately,
dla decided against approving the name change or a novation agreement and the
contract remained in the name of defendant pwc.
As far back as 2005, it was pwc logistics, the predecessor to defendant agility
dgs logistics services company, k.s.c.(c) (“agility kscc”), that was taking credit
for holding the pv contract and other contracts awarded by dla. See government
exhibits o and p, pwc logistics awarded dla contract. By 2007, it was agility
defense & government services that was taking credit for holding the pv contract and
other contracts issued and awarded by dla. See government exhibits q,r, s, t, u,
and v; agility dgs awarded $2.8 billion option year on subsistence contract;
agility awarded new contract for the subsistence prime vendor contract; agility
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27
dgs wins warehousing contract; agility awarded option year on u.s. Army’s
heavy lift vi contract; agility dgs awarded army vehicle storage contracts,
agility dgs wins warehousing contract.
Yet, while the contract itself may be in the name of defendant pwc, the
defendant continues to hold itself out as agility. The defendant has signed contract
modifications in the name of agility. See government exhibit w. It has submitted
invoices to dla in the name of pwc prime vendor and in the name of agility prime
vendor. See government exhibits x.
In october 2008, proposals were due to dla for the award of prime vendor
contract iii (“pv iii”). Pwc, or agility, or agility defense & government services,
or pwc logistics services co. Ksc(c) submitted a proposal on october 2, 2008. The
proposal was signed by daniel g. Mongeon, president & ceo of pwc logistics
services co. Ksc(c). The proposal represented that agility was a “proud partner of
dscp” and “remains committed to the current mission in iraq.” as to agility’s past
performance on the prime vendor contracts, the proposal states that, “agility was
awarded the original prime vendor iraq/kuwait contract in 2003 and has successfully
managed the follow-on contract since 2005.” it goes on to state, “(a)s dscp’s current
pv provider in kuwait, iraq, and jordan...we maintain a record of superior
performance on both government and commercial programs. ... Ultimately, our
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experience will demonstrate that for this critical mission, we are dscp’s proven, lowrisk
partner.” see government exhibit y. Apart from the proposal being signed by
daniel mongeon, the proposal identifies other key personnel, including paul g. Cerjan,
president, agility dgs, middle east, africa, and europe, who also was served with
process. See government exhibit z.
Defendant pwc/agility claims that it and the other two named defendants are
independent entities with separate officers, boards, and books. Yet, agility’s annual
reports contain consolidated financial results and, messrs. Mongeon and hoffman
appeared before and participated in discussions with dla regarding a resolution of this
case. See government exhibit aa.
Defendant pwc/agility cites several cases for the proposition that service on
a subsidiary is not service on the parent. But where the subsidiary is the alter ego of
the parent, service on the subsidiary is effective service on the parent. The united
states submits that given the image and the functional reality that defendant pwc/
agility has created for the world, including with dla and dscp, not only are agility
dgs and agility ksc(c) alter egos of pwc/agility, it appears that one or both have
performed on the various prime vendor contracts held in the name of defendant
pwc/agility. Moreover, the very fact that there is an integrated business unit within
agility identified as agility defense & government services demonstrates both the
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29
unitary nature of defendant pwc/agility’s efforts to secure u.s. Government contracts,
and the control that defendant pwc/agility exercises over the other two defendants
in this case. Illustrative of the level of control is the attached organizational chart that
shows daniel mongeon reporting to toby switzer who
was located in kuwait at defendant pwc/agility’s headquarters. See government
exhibit bb.
In lamb v. Volkswagenwerk ak-tiengesellschaft (vwag), 104 f.r.d. 95 (s.d.
Fl. 1985), defendant vwag sought to quash service of process contending that service
on its u.s. Subsidiary, vwoa, and on ct systems was not effective service on it. In
the case, vwag submitted an affidavit from one of its executives, remarkably similar
to those submitted by messrs. Mongeon, cerjan, and hoffman, claiming that it did not
exercise control over its subsidiary and service on the subsidiary was not service on it.
The court held otherwise finding that vwag maintained a sufficient degree of control
over vwoa that it essentially was nothing more than a department of vwag. Id. At
101. See also united states v. Toyota motor corporation, 561 f. Supp. 354 (c.d. Cal.
1983) (irs enforcement petition was validly served on japanese corporation by
personal service on one of its directors, who was also president of wholly-owned
american marketing subsidiary, in business offices of american subsidiary).
In the instant case, pwc, agility, agility defense & government services,
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30
which is comprised of agility dgs and agility ksc(c), are used interchangeably, and
agility is represented to the world as one unitary entity. While pwc purportedly is
the contractor on the pv contracts, agility, agility defense and government services,
agility ksc(c), and pwc logistics all have taken credit for being the prime vendor
and working with dla and/or dscp. For defendant pwc/agility to now try to tell
this court they are independent companies, belies belief.
In this case, service on agility dgs is service on defendant pwc/agility. In
united states v. Chitron electronics company, ltd., 668 f. Supp.2d 298 (d. Mass.
2009), the defendant shenzen chitron electronics company, ltd. (chitron-china) was
charged with illegally exporting defense articles and technology. Chitron-china
moved to dismiss all charges on the basis of insufficiency of service of process and
lack of personal jurisdiction, even though it had a u.s. Subsidiary, chitron electronic,
inc. (chitron-u.s.) which the government claimed was integrally managed by the
chinese parent. The court denied the defendant’s motion to dismiss, concluding that
the indictment and other evidence provided by the government showed a sufficient
interrelationship between the chinese parent and the u.s. Subsidiary so that service of
the summons on the president of the u.s. Subsidiary was sufficient to effect service on
the foreign parent.
While defendant pwc/agility claims that the chitron case can be distinguished
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31
from the instant case because its subsidiaries are distinct from it, the many admissions
contained in its documents show otherwise. Defendant pwc/agility and its defendant
subsidiaries, since at least the fall of 2006, have held themselves out to be one unitary
entity and all of the defendants at various times have claimed to have been awarded or
to have worked on the prime vendor contracts. Given the unitary nature of the
defendants and their interlocked and interlinked relationships, the instant case is no
different from chitron.
3. Pursuant to fed. R. Crim. P. 4, the united states mailed the
summons to defendant pwc/agility’s principal place of business
in the united states
in addition to serving managing or general agents of defendant pwc/agility and
serving an officer and the registered agent of its agility dgs holdings, the defendant’s
alter ego, the united states mailed the summons to the defendant’s principal place of
business in the united states in alexandria, virginia. The alexandria address is the
location of the defendant’s subsidiary which, as previously discussed is the alter ego
of the defendant. As such, a mailing to that address is a mailing to the principal place
of business of the defendant in the united states as the defendant pwc/agility, by the
time it was indicted, had closed its office in winchester, virginia. As explained
previously, defendant pwc/agility had an office in winchester, virginia, but that
office was closed just after the defendant received a grand jury subpoena from the
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32
grand jury that eventually indicted it. Given the defendant’s action in closing its
winchester, virginia office, the only remaining place of business in the united states
is the alexandria address.
Defendant pwc/agility relies on united states v. Johnson matthey plc, 2007
wl 2254676 (d. Utah 2007), in support of its claims that it has not been properly
served. Chitron, rather than johnson matthey, more appropriately applies in the instant
case. In johnson matthey, the only issue before the court was whether the government
had mailed the summons to the organization’s last known address within the district
or its principal place of business elsewhere in the united states as counsel for the
defendant had accepted service of process. The court concluded that the government
had not perfected service on the defendant because it had not complied with the second
part of fed. R. Crim. P. 4. Without any discussion, the court simply indicated that
service upon the defendant’s subsidiary was not sufficient service on the parent. 2007
wl 2254676 at 4. There is nothing in the decision to indicate whether the government
sought to demonstrate that the subsidiary was the alter ego of the defendant, as has
been demonstrated in the instant case, or that the summons was mailed to the address
of the alter ego subsidiary as it was in the instant case. This is a crucial distinction.
Here, in addition to service on managing or general agents and the defendant’s alter
ego, all of the summons were mailed to the duke street address of agility in
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33
alexandria, virginia. Agility regularly issued press releases from the alexandria
address, and the predecessor to defendant agility ksc(c) announced to the world that
its new offices at duke street in alexandria, virginia officially opened in august 2006.
See government exhibit cc. Thus, mailings to the alexandria address, the only
address for defendants in the united states, satisfied the second part of fed. R. Crim.
P. 4.
C. The united states is entitled to enforce its criminal laws against
foreign nationals for conduct committed in the united states and with
respect to u.s. Government contracts executed and issued in the united
states
defendant pwc/agility suggests that merely because it is a kuwaiti corporation
that it should not be subject to the jurisdiction of this court and that any action taken
against it might have “foreign relations concerns.” a review the factual context of the
prime vendor contracts highlights the weaknesses in defendant’s argument. First,
defendant pwc/agility is the prime vendor on contracts with instrumentalities of the
united states, specifically dla and dscp. Defendant pwc/agility submitted its
proposals, not in kuwait, but in the united states at philadelphia, pennsylvania;
defendant pwc/agility had a partner, at least on pv i, that is a u.s. Corporation;
defendant pwc/agility had an office and employees in the united states at least until
it abandoned the office and sent the employees to kuwait, after it learned it was the
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7 in hijazi, the seventh circuit issued a writ of mandamus ordering the
district court to rule on the defendant’s motions to dismiss the indictment. On
remand, the magistrate judge recently recommended to the district court that it
deny hijazi’s motions to dismiss.
34
focus of a criminal investigation; defendant pwc/agility’s officers and employees
made frequent visits to the united states regarding the prime vendor contracts;
defendant pwc/agility’s employees, even now, have contacts virtually every day with
dscp personnel who are located in philadelphia, pennsylvania; defendant
pwc/agility submitted billings almost daily to dscp in philadelphia, pennsylvania;
and all of the prime vendor contracts contained “buy american” provisions that
required prime vendors to purchase foodstuffs from u.s. Companies and for those
products to be shipped on u.s. Flagged vessels requiring frequent, if not daily, contacts
by defendant pwc/agility’s employees with u.s. Companies and with personnel of the
defense transportation system (“dts”) in the united states.
Moreover, much of the alleged illegal conduct in the indictment took place in
the united states, including the northern district of georgia. In short, this criminal
case is not about an effort to apply the criminal laws of the united states beyond our
borders but about alleged criminal conduct on these shores.
Defendant pwc/agility emphasizes the case in re hijazi, 589 f.3d 401(2009),
and seeks to equate its situation to that of the defendant in hijazi.7 other than the fact
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35
that both cases involve kuwaiti residents, the cases are nothing alike. The defendant
in hijazi was not in privity of contract with the united states, had been to the united
states only once in an unrelated visit some eight years before the conduct alleged in
the indictment, and, at least as the defendant argued, had no other contact of any sort
with the united states. In stark contrast, defendant pwc/agility was and is the prime
vendor on contracts with the united states government that have generated payments
to defendant pwc/agility of more than $8.5 billion and over the years and, even now,
defendant has frequent, if not daily, contacts with dscp, dts, and vendors in the
united states. In addition, defendant pwc/agility and the other defendants have
numerous other contracts with the united states government.
While the kuwaiti government has expressed some interest in this matter, it is
nothing like that it expressed in the hijazi case. In hijazi, the kuwaiti government
made several demands that the criminal case be dismissed and that hijazi not be
prosecuted in the united states. In contrast, in the instant case, the kuwaiti
government has made one rather tepid written inquiry about this matter expressing
interest in an “amicable settlement.” and, assuming for the sake of argument, as the
kuwaiti government asserts that “in accordance with kuwaiti laws, kuwaiti courts
have exclusive jurisdiction over all criminal and civil cases related to contracts
executed in the state of kuwait with kuwaiti companies,” that most assuredly does not
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describe the case before this court.
Further, while defendant pwc/agility argues that this court cannot or should
not exercise jurisdiction over it because of “foreign relations concerns,” it is not at all
reluctant to seek relief from u.s. Courts when it contends that it is the injured party.
As detailed above, in just the last three years, defendant pwc/agility or its subsidiaries
have filed at least five lawsuits in u.s. Courts. When it feels that it is the injured party,
defendant pwc/agility has no compunction about seeking relief in u.s. Courts. Now,
however, when it faces fraud charges in a u.s. Court, pwc/agility suggests dire
consequences if this court acts on those charges and claims that this court cannot
exercise jurisdiction over it.
Finally, defendant pwc/agility, claiming other “foreign relations concerns,”
alleges that the united states engaged in a ruse to lure ahmed alsayed abdulaziz, the
only person in a company of 37,000 designated to accept service of process on behalf
of defendant pwc/agility, to the u.s. Embassy in kuwait to serve him with process.
There is absolutely no truth to the allegations, and the united states can only conclude
that mr. Alsayed abdulaziz is hopelessly mistaken or confused and apparently has
submitted a mistaken or even false affidavit in support of his employer’s motion. No
one working on this case on behalf of the united states, including the prosecutors and
the agents assigned to this matter, including agents from the federal bureau of
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37
investigation, the defense criminal investigative service, the army criminal
investigative command, or anyone acting on their behest, made any attempt to lure mr.
Alsayed abdulaziz to the united states embassy in kuwait or tried to serve him with
any process at any time. See government exhibit dd. In an effort to further
investigate this claim, the united states requested defendant pwc/agility provide the
telephone number of mr. Abdulaziz. With that telephone number, the united states
could have checked embassy records to see if any calls were placed from the u.s.
Embassy to mr. Abdulaziz’s telephone number. Defendant pwc/agility has not
responded to the request of the united states and apparently has no intention of
providing the requested telephone number.
Given defendant pwc/agility’s lack of a response, one can only assume that the
defendant does not want its claims of a ruse fully investigated and that the affidavit of
mr. Abdulaziz may well be false. If that is so, it would not be the first time that an
employee of defendant pwc/agility has made or encouraged others to make spurious
allegations in litigation. See government exhibit ee.
There was no ruse directed at defendant pwc/agility and this prosecution does
not unduly impact foreign relations.
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iii. Conclusion
for the foregoing reasons, the united states respectfully requests that this court
deny defendant pwc/agility’s amended motion to quash service of process. If the
court concludes that the united states has not properly served defendant pwc/agility,
the united states requests that it be allowed time to attempt service of process through
diplomatic channels with the assistance of the state department of the united states.
Respectfully submitted,
f. Gentry shelnutt
acting united states attorney
/s/barbara e. Nelan
assistant u.s. Attorney
georgia bar no. 537537
/s/richard e. Reed
special assistant u.s. Attorney
georgia bar no. 597745
75 spring street s.w.
Suite 600
atlanta, ga 30303
404-581-6000
fax 404-581-6181
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certificate of service
this is to certify that i have this day served upon the persons listed below a copy
of the foregoing document electronically:
Richard h. Deane, jr., esq.
Anne moody johnson, esq.
David j. Bailey, esq.
Jones day
1420 peachtree street, ne
suite 800
atlanta, ga 30309-3053
counsel for public warehousing company k.s.c.
Tom bever, esq.
Brian mcevoy, esq.
William w. Fagan, iii, esq.
Chilivis cochran larkins & bever
3127 maple drive, ne
atlanta, ga 30305
counsel for agility dgs holdings, inc.
Richard w. Hendrix, esq.
Finch mccranie
225 peachtree street, ne
1700 south tower
atlanta, ga 30303
counsel for agility dgs logistics services company, k.s.c. (c)
this 21st day of june, 2010.
/s/barbara e. Nelan
assistant united states attorney
case 1:09-cr-00490-twt-ajb document 92 filed 06/21/2010 page 39 of 39

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