Criminal Capital: How the Finance Industry Facilitates Crime

CRIMINAL CAPITAL

HOW THE FINANCE INDUSTRY FACILITATES CRIME

STEPHEN PLATT

© Stephen Platt 2015

Foreword © Robert Mazur 2015

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No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS.

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First published 2015 by

PALGRAVE MACMILLAN

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ISBN: 978–1–137–33729–0

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For Joshua & William

CONTENTS

Foreword

Preface

Acknowledgements

1 Harmful Practices

2 Money Laundering Models

3 Onshore/Offshore Dichotomy

4 Drug Trafficking

5 Bribery and Corruption

6 Piracy

7 Trafficking of Human Beings and Smuggling of Migrants

8 Terrorism Financing

9 Sanctions-Busting

10 Tax Evasion/Avoidance

11 Causes and Solutions

Notes

Index

FOREWORD

By the winter of 1988 I had just finished several years of deep undercover work, living as a money launderer for Pablo Escobar and his closest associates. My covert life had taken me to many interesting places including the boardroom of what some have described as the dirtiest bank of all time – the Bank of Credit and Commerce International. BCCI was the seventh largest privately held bank in the world, a global powerhouse that catered to drug lords, arms dealers, terrorists and big-time tax evaders. As gatekeepers for the fortunes of the underworld, BCCI bankers taught me every money laundering trick they knew. The investigation resulted in nearly 100 drug traffickers, money launderers and bankers being arrested. The scandal made the headlines for years as everyone, including governments, reeled from the shock that one of the world’s largest banks was inextricably intertwined with some of the world’s most toxic individuals. Shortly afterwards, death threats forced me and my family to go into hiding.

While preparing to testify in the resulting criminal trials in the United States and Europe, I noticed an unfamiliar face at the US Customs office in Tampa. A young student from London had been given a once-in-a-life time opportunity to study our work in pursuit of his university thesis. My stints in the office were short and guarded, so I observed him only from a distance. That student was Stephen Platt. Twenty-three years later, I met him and realised that he was the student I had seen in Tampa all those years before. His decision to pursue a career in law and financial crime prevention in particular was, it transpires, strongly influenced by the BCCI case. I am grateful for that because his journey since has been remarkable. It has imbued him with a deep expertise of the criminal vulnerabilities of financial services in both on – and offshore financial centres. He is now justifiably regarded as one of the world’s leading practitioners in the field, trusted by governments and regulators alike to undertake highly sensitive investigations which are often systemically important to the jurisdictions concerned.

In Criminal Capital, Stephen has given us an invaluable gift. He catapults the reader’s knowledge about the methods used by criminals to commit crimes and launder their proceeds with the help of the finance industry. He examines a range of different predicate crime types and explains how they generate vast fortunes that are retained by criminals who exercise enormous leverage over banks and sometimes the jurisdictions in which they operate. Guiding the reader through some of the biggest bank laundering scandals of the past decade he considers why money laundering is causally linked to a range of other harmful behaviours in finance, including excessive risk taking, mis-selling and rate rigging.

This is a well-researched and powerful book. It should be a required reading for compliance professionals in finance as well as policymakers charged with implementing meaningful reform of the banking industry.

Robert Mazur

Former US Federal Agent

Author of The Infiltrator

PREFACE

For much of the last 20 years, I have sifted through thousands of files relating to hundreds of relationships involving financial institutions in different parts of the world that have either facilitated crimes or laundered the proceeds of crimes on behalf of customers. I have tried to maintain a balanced perspective, recognising that many financial institutions are committed to the prevention of illegal activity and not its facilitation. Yet, my experience, synthesized with the ever-expanding list of financial institutions embroiled in scandalous conduct, has persuaded me that change is required. I do not subscribe to the view that there is an innate toxicity at the heart of the financial services industry but I do believe the industry needs to take tougher action to address its susceptibility to the facilitation of crime and the laundering of its proceeds and that to do so meaningfully it must recalibrate its values. To encourage it, prosecutors and regulators must begin to wield bigger sticks.

My motivation in writing this book is to inform both the professional and lay reader about the excesses of the financial services community by cutting through industry jargon and looking at abusive products, services, arrangements and relationships for what they really are. I attempt to boil down what appear to be highly complex concepts into basic digestible components, and to analyse different predicate crime types and the ways in which the financial services industry helps in their commission and launders the proceeds generated by them.

Client confidentiality is non-negotiable. I reveal nothing about particular clients or matters that I have been called upon to consider. Instead, I draw upon what I have observed over the course of my career to illustrate, through fictitious scenarios, the vulnerabilities of the financial services sector to criminal abuse in the hope that they will serve the dual purpose of helping the industry take more effective preventative action whilst also assisting the authorities to hold the industry to greater account.

Stephen Platt

July 2014

ACKNOWLEDGEMENTS

This book is the product of the collective efforts of a number of colleagues to whom I am indebted: my editor Pete Baker for his guidance; Colleen and Charlotte for their research and attention to detail; Tom for keeping the home fires burning and Bob for the Foreword. My career was made possible only because of the sacrifices of my loving parents. Finally, thanks to my wife without whose love and support this book would have remained a fanciful notion.

1

HARMFUL PRACTICES

Risk is synonymous with banking. Every loan and refinancing arrangement is an exercise in risk management undertaken by banks in the knowledge that without risk there can be no reward and that there are as many dangers in not taking enough risk as there are in taking too much.

In recent years, the fact and consequences of excessive risk taking by banks has been thrust into the spotlight – and rightly so. As the 2008 banking crisis revealed, the systemically important nature of large banks and the interconnectivity between them, markets, and governments had created a situation in which some financial institutions were crippled as a result of excessive risk taking. Yet, these institutions were seen as ‘too big to fail’ – that is to say, their collapse might have risked catastrophe, not only for their own customers, but for the entire international financial system and all that depends upon it.

A degree of risk taking by banks is, however, necessary for the continued health of the global economy. Businesses require capital in order to start up and to expand, much of which is drawn from bank lending. Individuals benefit from access to finance for house purchases and from income accruing to their pensions from investments in bank stocks. And national treasuries benefit from the taxation of bank profits (at least when they are not bailing the banks out). In short then, public interest demands that banks take risks, but not so much risk that taxpayers have to foot the bill.

Recognition of the stake that society has in the behaviour of banks is only one reason why there is now a strong public interest in the way financial institutions take and manage risk. Before 2008 I had formed the view that some of the behaviours of the financial services industry were contrary to the public interest, and not only because of an unhealthy general approach to risk taking. Two further crucial, but underrated, reasons stood out, both of which were ultimately linked to excessive risk taking: the role of the industry in laundering the proceeds of crime, and the role of the industry in the facilitation of crime itself. Extreme risk taking, along with other damaging activities such as product mis-selling and rate fixing, have dominated public discourse since 2008, whilst money laundering and the associated facilitation of criminal activity by financial institutions have been relegated to a less prominent position. There has, in addition, been scant recognition of the commonality of causes lurking beneath all these types of misconduct, an understanding of which is essential to changing attitudes and reform.

Money laundering and the facilitation of crime by financial institutions are two of the great evils of our age. They enable drug dealing, human trafficking, tax evasion, corrupt payments, and the commission of acts of terrorism all over the world. Laundering and facilitation lie behind the infliction of misery and suffering on countless millions of people, and allow the perpetrators to get away with and retain the proceeds of their crimes. Very few bankers knowingly assist such people (albeit there are some notable exceptions); the vast majority would be aghast if confronted with the results of the abuse of their institutions by criminals. The fact that such abuse is more likely to result from negligence on the part of the banks than from a deliberate policy to facilitate crime and launder money ultimately, however, matters little – the end effect is much the same.

This is not a book about how to ‘fix’ the finance industry in a broad sense. Rather, it seeks to advance three propositions. First, that there are multiple common causal factors behind reckless risk taking, various forms of harmful behaviours, and the facilitation of crime and money laundering by financial institutions. Second, that policy-makers and bankers need to study all of those related causes before shaping responses to the 2008 financial crisis, in particular those conduct types that indicate the most reckless disregard for the law. Thus far they have failed to do so. Third, that the traditional model of money laundering – which continues to form the bedrock of the industry’s attempts to prevent financial crime – is flawed; this has resulted in a great deal of avoidable harm caused by financial institutions failing to detect money laundering and the facilitation of crime because they were not looking for it in the right places. A new model is needed, which this book proposes.

The industry is a sick patient whose symptoms range from excessive risk taking, rate fixing, and mis-selling financial products to breaching sanctions laws, laundering money, and facilitating crime. These harms are all given cursory examination in this chapter, but it is money laundering and the facilitation of crime – the most heinous symptoms of the industry’s malady – that the majority of this book is devoted to.

EXCESSIVE RISK TAKING

It is widely acknowledged that reckless risk taking was key among a nexus of factors that precipitated the financial crisis in 2008. The report published by the US Senate Permanent Subcommittee on Investigations in 2011, drawing from millions of pages of documents and numerous interviews, examined the causes of the collapse, placing its origins in: ‘high risk lending by U.S. financial institutions; regulatory failures; inflated credit ratings; and high risk, poor quality financial products designed and sold by some investment banks’.¹ The central role of risk taking in the triggering of the downturn becomes all the more clear when we consider the use of the word ‘risk’ 1,200 times throughout the report’s 639 pages.

The cumulative consequences of excessive risk taking manifested themselves most dramatically in the collapse of Lehman Brothers and the UK government bailouts of Northern Rock, Royal Bank of Scotland, and HBOS shortly thereafter. Despite all of the macroeconomic contributing factors including the asymmetry between the capital deficits of the West and the surpluses in emerging markets, the crisis at its core is a tale of capital and liquidity indiscipline and risk taking on an epic scale. Banks had leveraged their capital bases so highly that even small movements in the value of their underlying assets could have catastrophic consequences. By the time that Lehman Brothers filed for Chapter 11 bankruptcy protection on 15 September 2008, its leverage ratios were sky high; with its assets taking a tumble in value, so followed the rest of the bank. Lehman’s own reporting to the Securities and Exchange Commission showed that towards the end of 2007, the bank’s leverage ratio (a figure which pits assets against owner equity) was 30.7:1. This ratio was a steady increase on previous years – 26.2:1 in 2006, 24.4:1 in 2005, 23.9:1 in 2004 – and exposed the bank to extraordinary vulnerabilities, especially in the housing-related market where it had a substantial portfolio of mortgage-backed securities.

To the uninitiated, the world of packaged mortgages, collateralised debt obligations (CDOs), and credit default swaps (CDSs) seems impenetrable. In fact, if we ignore the self-serving investment banking jargon the products involved are relatively straightforward and, pre-2008, many of them essentially involved banks taking a punt on whether or not home-owning members of the public would meet their mortgage repayments.

CDOs gained notoriety from the financial crisis, and they even garner a fleeting mention in Martin Scorsese’s 2013 film The Wolf of Wall Street. The principle behind them is simple: CDOs are forms of security against certain kinds of debts that can be traded. Owners of and investors in CDOs are entitled to receive income arising from the repayment of the loans underlying the security. In the run up to the crisis, banks lent money to borrowers and then sold the ownership of the right to receive the repayments to third parties in the form of CDOs. Because the lending banks were able to offload the mortgages through the sale of CDOs, they had little interest in whether the loans were going to be repaid. As a result, they lent recklessly, including to borrowers with little ability to repay (referred to as ‘subprime’). This system incentivised banks to lend as much money to as many borrowers as possible, paying little heed as to whether or not mortgage repayments could be met.

Recognising that for there to be an active and continuing market in CDOs, they had to sell AND buy CDOs, the banks which were engaged in the origination of the loans and the structure and sale of CDOs also bought CDOs from other lenders thereby merrily engaging in a game of pass the parcel with ticking time bombs.

CDOs were supplemented by CDSs. A CDS is akin to an insurance policy, whereby the seller of a CDO is obliged to compensate the buyer in the event of a default in the underlying loans. Investors in CDOs bought CDSs to hedge against the risk of default by the home-loan borrowers underpinning the CDOs. Speculators (including banks) with no interest in the underlying loans began to buy CDSs as a means of betting on whether those loans would be repaid.

Several banks structured and sold CDOs for the express purpose of buying CDSs to bet against them, assuming (rightly as it turned out) that borrowers would fail to repay their loans. Banks were actually creating and selling securities so that they could profit by betting that they were worthless. When the US housing bubble burst the party came to an abrupt end, and sellers of the CDSs were left with a very serious hangover. In some cases, chief among them American International Group (AIG), they were so undermined they either went bust or required government bailouts. In a nutshell, the wheeling and dealing of these products led to massive increases in national deficits and a global economic downturn.

You may well wonder how CDOs and CDSs fit into the high street banking landscape? The answer is of course that they bear very little relation to the traditional model of borrowing from depositors and lending to homeowners but, since the 1990s, significant profits have been generated from these more exotic investment banking activities that allowed the lunatics to take over the asylum. Just as nobody at Barings condescended to ask how Nick Leeson was generating such enormous profits out in Singapore over a decade earlier, so bank directors and risk departments, as well as other market participants including the lawyers who structured the instruments and the accountants who audited them, seemed blind to whether the CDO/CDS merry-go-round had any sound basis in logic. Bank of America paid the steepest price yet for alleged behaviour of this kind after federal prosecutors and state attorney generals said that two of its divisions knowingly misrepresented the toxicity of mortgage-backed securities and other financial products to investors and the US government in the run-up to the financial crisis. In August 2014 it agreed a $16.6 billion civil settlement to resolve the accusations, the largest fine of its kind in the history of the United States.

You would be forgiven for thinking that financial institutions took a long hard look at the weaknesses in their systems which laid such fertile ground for rampant – and ultimately toxic – risk taking. Alas, they did not. Barely four years after the collapse of Lehman Brothers, JP Morgan was accused of lax supervision and inadequate risk controls after it lost billions of dollars in bad trades involving our old friend the CDS. Former bank employee Bruno Iksil, who was nicknamed the ‘London Whale’, is at the centre of the debacle after taking bloated positions on credit derivatives markets, and leading a series of bets on whether or not financial instruments or entities would default. Before the extent of the losses was apparent, JP Morgan’s CEO Jamie Dimon dismissed the matter as ‘a complete tempest in a teapot’. He was forced to back-track when it became evident that the trades had incurred around $6 billion of losses. Dimon could have been speaking at the dawn of the 2008 crisis when he said that the bank’s strategy in relation to the portfolio was ‘flawed, complex, poorly reviewed, poorly executed, and poorly monitored’.² But this occurred four years later in a hindsight averse world where volatility and risk continued to prance about unchecked.

The fines paid to regulatory authorities as a consequence of the Whale trades reached $920 million in September 2013, in the scheme of things actually relatively little given that this figure only represents around 5% of the bank’s 2012 record $21.3 billion net profit. Dimon also came away relatively unscathed: although he was given a financial slap across the wrists when his restricted stock options for 2012 decreased 54% to $10 million, that figure soared to $18.5 million for 2013. This is piled atop a fixed salary, which has teetered around the $1.5 million mark over the past few years.

FIXING

Beyond the excessive risk taking gnawing away at the stability of the global financial system is a number of other practices that have eroded the public’s trust in the banking sector, a stand-out case being the rigging of global benchmark rates. On the face of it, you may wonder what this has to do with money laundering and the facilitation of crime, but when we refocus the lens on the circumstances which give rise to these practices, striking family resemblances begin to emerge.

One of the best recent examples of banks rigging key market rates concerns LIBOR, the London Interbank Offered Rate, although its Euro and Tokyo counterparts (Euribor and Tibor) have themselves also become mired in manipulation controversies. LIBOR, which was established in the 1980s, is a benchmark rate of interest calculated through daily submissions of rates by banks with a significant presence in London. The banks are supposed to submit the actual interest rates they are paying, or would expect to pay, for borrowing from other banks by answering the following question daily: ‘At what rate could you borrow funds, were you to do so by asking for and then accepting inter-bank offers in a reasonable market size just prior to 11 am?’ (Elevenses is considered the ‘most active part of the London business day’). The banks’ submissions are ‘trimmed’; some of the highest and lowest figures are removed and the rest are averaged. Whilst the resulting LIBOR rate – published to the market at 11.45 am – is not the rate at which banks actually lend to one another, it serves as an important bellwether of sentiment in the sense that if the banks feel bullish, they report a low rate and if they feel bearish they report a higher rate. Crucially, LIBOR is often relied upon as a reference rate for mortgages and student loans, and it is referenced by loan and financial contracts worth over $300 trillion. Consequently, any manipulation of the rate contaminates markets and impacts untold millions of consumers.

The LIBOR scandal erupted when it was revealed that banks were falsely inflating or deflating their submitted rates to give the impression that they were more creditworthy than they really were, or to profit from trades. Investigations have revealed significant fraud and collusion by LIBOR member banks connected to the rate submissions. Manipulation was facilitated by the fact that submissions require human judgement and expertise (rather than a sole reliance on automatically generated data) and have been, until recent reforms, largely ‘self-policed’. The financial institutions submitting the rates were also inherently conflicted by virtue of their position as contributors to the rate, users of the rate, and participants in the market; a conflict ripe for exploitation.

Barclays was the first bank to settle with the authorities for LIBOR and Euribor rigging. In the US, it entered into an agreement with the Department of Justice to pay $160 million and was ordered to pay $200 million by the Commodity Futures Trading Commission, the US derivatives regulator. The UK’s Financial Services Authority (now the Financial Conduct Authority) swung into action and imposed a financial penalty on Barclays of £59.5 million – discounted from £85 million following early settlement – and the scandal very publicly claimed the scalps of Marcus Agius, chairman of Barclays Bank, and Bob Diamond, its chief executive. Among numerous of the FSA’s findings was the chummy persuasion of one Barclays trader to an external trader in respect of a three-month US dollar LIBOR: ‘duuuude ... whats up with ur guys 34.5 3m fix ... tell him to get it up!!’ The external trader responded: ‘ill talk to him right away’.³ The transcripts were probably not what Barclays had in mind when an independent review of LIBOR recommended that records be kept relating to the submission process, especially those between submitting parties and internal and external traders.

RBS and its subsidiary company RBS Securities Japan (RBSSJ) have also been embroiled in the scandal. The so-called ‘Statement of Facts’ forming part of the ‘deferred prosecution agreement’ (DPA) (when a party voluntarily admits to certain facts but does not plead guilty to any charge, nor carry any conviction) entered into by RBS with the US authorities said that between 2006 and 2010, certain RBSSJ derivatives traders had schemed to ‘defraud RBS’s counterparties by secretly attempting to manipulate and manipulating yen LIBOR’.⁴ The traders managed to influence the published yen LIBOR rates ‘by acting in concert with RBS’s Yen LIBOR submitters to provide false and misleading submissions to Thomson Reuters, which were then incorporated into the calculation of the final published rates’. The assessment of the RBSSJ traders’ behaviour in the DPA, serving as a general description of a host of misdemeanours perpetrated within banking walls, simply stated that the traders ‘engaged in this conduct in order to benefit their trading positions, and thereby increase their profits and decrease their losses’. The DPA is peppered with astonishing snippets of electronic conversations between traders. In one of these, UBS derivatives trader Tom Hayes asked a RBS yen derivatives trader: ‘can you do me a huge favour, can you ask your cash guys to set 1m libor low for the next few days ... i’ll return the favour as when you need it ... as long as it doesn’t go against your fixes ... have 30m jpy of fixes over the next few days’. Hayes chirpily salutes the trader as he is shutting down: ‘off home dreaming of a low 1m libor!’

The penalties keep rolling in. Japanese unit RBSSJ pleaded guilty to a count of wire fraud for its role in manipulating yen LIBOR rates and agreed to pay a $50 million fine. Its parent RBS was fined £87.5 million by the FSA for ‘widespread’ misconduct comprising ‘at least 219 requests for inappropriate submissions’ and ‘an unquantifiable number of oral requests’.⁵ The Commodity Futures Trading Commission hit RBS with a $325 million fine, and the Department of Justice demanded $150 million. RBS was also fined a further €391 million at the end of 2013 following a European Commission investigation into rate rigging.

In 2014 RBS reported its largest loss since the government bailout and set aside £3 billion to cover litigation and consumer claims. As a consequence of RBS’ very public dressing downs, the hotly contested question of banker bonuses lingers at the forefront of consumers’ scrutiny of the bank.

The LIBOR drama has seen, and will yet see, many twists and turns. In 2013, a ‘substantial portion’ of the claims made in a highly publicised class action suit filed by the City of Baltimore against a number of banks involved in LIBOR manipulation was dismissed by the US courts, although the law firm representing the city proceeded to test the waters in the UK. Hausfeld LLP had some success in representing the home care operator Guardian Care Homes in a £70 million suit against Barclays linked to LIBOR rigging, which was settled in April 2014. The Serious Fraud Office (SFO), the Financial Conduct Authority (FCA), and US authorities are jointly conducting an ongoing investigation into LIBOR rate manipulation. In the UK, criminal proceedings have been issued against a former UBS and Citigroup trader, as well as