A Miami-based defense contractor has been charged with defrauding the federal government by delivering faulty, decades-old munitions to Afghan security forces.
Efraim Diveroli, the 22-year-old president and owner of AEY Inc., along with three company associates were indicted Friday by a federal grand jury in Miami on 71 counts related to the sale of Chinese ammunition through a Defense Department contract.
The House Oversight and Government Reform Committee plans to hold a hearing on the company's contracts on Tuesday.
AEY has faced public scrutiny since March 2008 when The New York Times reported that the company had shipped defective Chinese ammunition under a $298 million Defense contract. A subsequent investigation by Government Executive showed that AEY had been improperly designated as a small disadvantaged business less than a year before receiving the massive arms contract.
Also indicted were AEY Director and Vice President David Packouz; company agent Alexander Podrizki and Ralph Merrill, described as a business associate of Diveroli. Each of the four defendants is charged with one count of conspiracy and 35 counts of procurement fraud. Diveroli additionally is charged with 35 counts of making false statements to the Army. Each of the defendants faces a maximum of five years in prison per count if convicted of the conspiracy and false statement charges and 10 years per count for the procurement fraud charges.
The case against AEY is built largely on a series of e-mails sent among the defendants and the State Department.
Podrizki, AEY's agent stationed in Tirana, Albania, sent an e-mail in April 2007 to Packouz that included pictures of ammunition in containers with Chinese markings. Packouz responded that they would have to "get rid of" the crates with Chinese letters since the sale of Chinese products was prohibited under their contract.
In the following days, Diveroli sent several e-mails to the State Department asking if Chinese-manufactured ammunition could be used to fulfill their contract. Diveroli said the ammunition had been in the hands of an Albanian company for more than 20 years.
State officials told Diveroli that the transaction could not be authorized without a national security waiver from the president, which was unlikely.
Prosecutors also uncovered e-mails in which AEY officials discussed painting over metal cases and cleaning wooden munitions crates that included references to China. One e-mailed photo showed a person scraping the words "Made in China" off a crate.
The false statement charges stem from the fact that with each shipment, Diveroli falsely confirmed that the ammunition being supplied conformed to all aspects of the contract requirements. According to the indictment, on these certificates, Diveroli cited the military export and import company in Tirana, Albania, as the manufacturer and point of origin of the ammunition.
Howard Srebnick, an attorney for Diveroli, said the federal regulation cited in the indictment prohibits the delivery of ammunition acquired directly or indirectly from a Communist Chinese military company. He said Americans are not prohibited from selling Chinese-made ammo to the Army if it was acquired before the 1989 Chinese munitions embargo.
"The government knows Mr. Diveroli purchased the Chinese-made ammo from the Albanian government, which had acquired the ammo back in the '60s and '70s, before the Chinese embargo and before Mr. Diveroli was even born," Srebnick said. "Mr. Diveroli did not acquire the Chinese-made ammo, 'directly or indirectly,' from any Communist Chinese military company."
Srebnick said the government has deliberately misconstrued the regulations so the Army can avoid its multimillion-dollar contractual obligation to Diveroli. "Fortunately, a federal judge and jury, not a government bureaucrat, will decide who's right," he said.
In a statement, U.S. Attorney Alex Acosta said contractors are responsible for the safety and effectiveness of the weapons they provide.
"When these contractors intentionally cut corners to line their own pockets, they risk the safety and lives of our men and women in uniform," Acosta said. "Such callousness and disregard for the lives of our soldiers and our allies will not be tolerated, and will be vigorously prosecuted."
Anthony Mangione, special agent in charge of the Immigration and Customs Enforcement's Office of Investigations in Miami, said the indictment and arrest of the four men were the result of a three-year joint investigation conducted by the ICE counterproliferation investigations unit, Defense Criminal Investigative Service and the Army Criminal Investigation Command.
The Oversight Committee's hearing Tuesday will focus on AEY's performance and how it gained access to millions of dollars worth of government contracts. In particular, the committee will address whether parties involved in AEY's munitions procurements were identified on the State Department's Directorate of Defense Trade Controls watch lists as suspicious individuals or entities.
Diveroli and Packouz were invited to testify, but committee sources say they are not expected to appear given the recent indictments and arrests. The three remaining witnesses are Brig. Gen. William Phillips, commander of the Army's Picatinny Arsenal and Lethality Life Cycle Management Command; Mitchell Howell, executive director of the Defense Contract Management Agency's ground systems and munitions division; and Stephen Mull, acting assistant secretary for the State Department's Bureau of Political-Military Affairs.
On the eve of the hearing, the Oversight Committee released State documents, interview notes and e-mails suggesting that the U.S. ambassador to Albania attempted to cover up the Chinese origins of the AEY munitions.
Maj. Larry Harrison, chief of the embassy's Office of Defense Cooperation, told committee investigators that top Albanian officials, including then-defense minister Fatmir Mediu, were worried about a November 2007 visit by a New York Times reporter to an AEY packaging site in Tirana.
Mediu was reportedly concerned that the Times would document corruption in the Albanian Ministry of Defense. Prosecutors allege that AEY officials were removing Chinese ammunition from their original packaging at the airport facility before sending it to Afghanistan.
Harrison hastily arranged a late-night meeting with Mediu, John Withers II, the U.S. ambassador to Albania, Stephen Cristina, the embassy's deputy chief of mission and Patrick Leonard, the embassy's regional security officer. At the meeting, Harrison reportedly suggested that Mediu simply not allow the reporter access to the packaging facility, but the defense minister apparently had other ideas.
Mediu called the commanding general of the Albanian military forces and instructed him to remove all Chinese ammunition boxes from the site so "there would be nothing for the reporter to see," Harrison said. Withers reportedly agreed with the move, suggesting that it would help "alleviate the suspicion of wrongdoing," Harrison said.
Harrison told investigators that he disagreed with Mediu's decision and felt "very uncomfortable" at the meeting.
At the time of the meeting, AEY was already under federal investigation for illegal arms trafficking involving Chinese ammunition.
In March 2008, just one week before the Army suspended AEY from receiving any further contracts, Mediu resigned his post. News reports have suggested Mediu received kickbacks from AEY and Albania's chief prosecutor has accused him of "abuse of power" and making an "unfair profit." The Albanian Parliament recently lifted Mediu's immunity from prosecution.
Documents released by the committee Monday also suggested that top officials with the U.S. Embassy in Albania disregarded Harrison's advice to inform the committee about the November meeting. Committee investigators had asked the State Department to turn over all internal communication related to AEY and the Albanian government, but the embassy's response made no mention of the meeting.
"We concluded that the embassy had no proper advocacy role in a standard commercial dispute between a contractor and the host government, and we should only get involved if directed to do so through a formal front channel cable with DoD clearance," the embassy said in response to questions from the Oversight Committee.
In a June 23 letter to Secretary of State Condoleezza Rice, Committee Chairman Henry Waxman, D-Calif., requested interviews with a half dozen top embassy officials, including the three who attended the November meeting. He also has requested all documents related to AEY's contract that were created or possessed by the U.S. Embassy in Albania.