According to the criminal complaint, to induce investments and discourage withdrawals, Barry guaranteed specified positive rates of return, issued account statements that showed growing account balances, represented that investing in the Leverage Group was safe and promised that withdrawals could be made easily.
In 2006, Barry distributed a letter stating that the Leverage Group had "produced annual returns ranging from the recent 12.55 percent to a high of 21 percent back in 1979.
The complaint charges that Barry actually was running a Ponzi scheme, paying returns to Leverage Group investors not from any profits earned on investments, but rather from existing investors deposits or money paid by new investors. Barry never produced or earned the rates of return that he advertised and cited in clients' account statements. Rather, the positive rates of return were simply pre-determined interest rates made up by Barry.
The complaint further alleges that Barry lied to investors about core aspects of the Leverage Group. For example, Barry did not limit the Leverage Group's investments to stock options. In fact, Barry eventually stopped investing in options altogether and instead purchased real estate, mostly located in Sullivan County. The SEC says Barry also used some client money to run a side business that sold pornographic materials.
In addition, Barry falsely assured investors about their risk of loss. For example, Barry allegedly made misleading statements regarding whether his clients' individual investment accounts were covered by the Securities Investors Protection Corporation (SIPC), which is a federally mandated non-profit corporation that protects securities investors from financial harm if a brokerage firm fails.
However, according to the complaint, the Leverage Group is not a brokerage firm and thus is not covered by SIPC.
Lastly, the complaint details how Barry routinely broke his promise to investors that they could easily withdraw money from their accounts by first discouraging such withdrawal requests, and if that failed, delaying payment by offering a variety of excuses. Even in those instances when Barry actually issued withdrawal checks, they would often be returned due to insufficient funds. In some cases, Barry simply ignored investors' withdrawal requests altogether.
All told, approximately 800 individuals invested a total of more than $40 million in the Leverage Group. Although many investors succeeded over the years in making full or partial withdrawals (particularly before the Ponzi scheme began to unravel), numerous other investors sustained substantial losses. Although the government's investigation is ongoing, a preliminary estimate of the cumulative ending balances as listed on the Leverage Group investors' account statements is more than $45 million, far exceeding the actual value of the assets then held by the Leverage Group.
"This defendant allegedly convinced hundreds of individuals to hand over their savings for what was supposed to be a safe investment that could be easily liquidated," United States Attorney Benton Campbell said. "In reality, as charged in the complaint, the defendant's investment fund was nothing more than a classic Ponzi scheme. We will aggressively prosecute those who perpetrate such crimes."
If convicted of securities fraud, Barry faces a maximum sentence of 20 years in prison.
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