Owner Of Long Island Produce Distributor Convicted At Trial Of Embezzling Money From Company Profit Sharing Plan

Preet Bharara, the United States Attorney for the Southern District of New York, announced today the conviction after trial of THOMAS HOEY, JR. for embezzling nearly all of the assets of his company’s profit sharing plan and defrauding the plan participants.  HOEY, the owner and president of a Long Island based produce distributor (the “Company”), and trustee for the Company’s profit sharing plan (the “Plan”), an employee benefit plan set up for the benefit of the Company’s employees, transferred over $750,000 from the Plan to the Company’s corporate accounts.  HOEY then unlawfully used the money to cover significant negative balances in the Company’s accounts, to purchase, among other things, hundreds of thousands of dollars of produce for the Company, and for hundreds of thousands of dollars of HOEY’s personal expenses.  HOEY was convicted after a four-day jury trial before Judge Paul A. Engelmayer.

U.S. Attorney Preet Bharara said:  “Thomas Hoey Jr. made real what is the nightmare of any hardworking employee: the theft of a company-sponsored pension plan.  As the jury found in convicting him today, Hoey stole virtually all of his employees’ retirement plan money, and spent it himself on international travel, limousine service, and luxury Manhattan hotels.  Thanks to the efforts of our law enforcement partners at the Department of Labor and Internal Revenue Service, Hoey will now receive just punishment for his crimes.”   

According to the allegations contained in the Indictment as well as the evidence presented during trial:

The Plan was set up as an employee pension benefit plan under the Employee Retirement Income Security Act of 1974 (“ERISA”), for the benefit of certain employees of the Company.  As an ERISA qualified pension plan, there were strict statutory and regulatory limitations on the use of money contributed to the Plan.  In particular, Plan proceeds could only be used to pay for employee disbursement and employee loans, which, in no circumstances, could be greater than $50,000.  Moreover, the Company, which was the sponsor for the loan, was not allowed to receive any money from the Plan. 

Between June 2009 and July 2012, however, the defendant transferred almost all of the assets in the Company’s Plan to corporate accounts that HOEY controlled.  Specifically, in three transactions on one day in June 2009, the defendant transferred $350,000 from the Plan to the Company’s corporate bank account.  In May 2010, the defendant transferred $415,000 from the Plan to the Company’s corporate bank account.  And finally, in July 2012, the defendant transferred $73,000 from the Plan to the Company’s corporate bank account.  As a result of these withdrawals from the Plan as well as fees on the account, the Plan, which at one point was worth over $900,000 in employee benefits, was almost entirely depleted. 

The Plan money was transferred to corporate accounts to cover significant negative balances as well as for additional corporate expenses and HOEY’s personal expenses.  For example, hundreds of thousands of dollars of Plan money was used to pay invoices from the Company’s produce suppliers.  Plan money was also used to pay for automobile insurance on a policy that covered, among other vehicles, numerous luxury cars that HOEY used for his personal use.  During the period of time that HOEY was using Plan money to fund the Company’s corporate accounts, the corporate accounts were also being used to pay for HOEY’s personal expenses, including international travel for HOEY and his family, limousine service, and hotels in Manhattan.

In order to cover up HOEY’s embezzlement of Plan assets, HOEY caused plan statements to be created that reflected the employees’ full account balances as if no money had been taken out of the Plan.  A 2012 account statement for one employee, for example, reflected an individual benefit total of approximately $140,000.  At that time, however, the total amount of money left in the Plan was only approximately $15,000.

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HOEY, 48, of Garden City, New York, was convicted of one count of embezzlement from an employee pension plan, which carries a maximum sentence of five years in prison; one count of interstate transportation of stolen money, which carries a maximum sentence of 10 years in prison; one count of wire fraud, which carries a maximum sentence of 20 years in prison; and one count of money laundering, which carries a maximum sentence of 10 years in prison.  HOEY will be sentenced on July 19, 2016, at 10:00 a.m. before Judge Paul A. Engelmayer.

Mr. Bharara praised the work of the DOL and IRS.

This case is being handled by the Office’s Complex Frauds and Cybercrime Unit.  Assistant U.S. Attorneys Kristy J. Greenberg and Daniel B. Tehrani are in charge of the prosecution.