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I. Form Letters and Subpoena Schedules

The Office of Consumer Litigation, after consultation with NHTSA's Odometer Fraud Staff, has developed a series of forms and form letters that can be used in conducting an odometer fraud/altered securities investigation. These forms should prove helpful in tracking down the "paper side" of an odometer fraud/altered securities investigation.

1) Auction Letter (6/96)
This is a form letter addressed to an automobile auction. This form letter inquires whether individuals and/or entities are registered at the auction and requests that certain information be produced about those individuals and/or firms. (The letter does not seek initial production of all invoices relating to cars bought and/or sold by the individuals or entities. Given the volume of business conducted by an auction, there frequently can be a lengthy delay in receiving invoices from the auction. For most cases, the computer print-out is all that is necessary initially, and documents can be more quickly obtained from the dealers who bought/sold cars from the subjects/targets at the auctions.)

2) High Mileage Seller Letter (6/96)
This is a form letter to be sent to the high mileage seller of the vehicle. This letter should be sent to the dealership(s) appearing in the chain of title before the car reached the subject/target of the investigation. It requests voluntary production of original documentation relating to the vehicle and asks specific questions concerning the purchaser.

3) High Mileage Lease Company Letter (6/96) 
This is a form letter to be sent to a leasing company, which originally owned the vehicle. Most leasing companies will voluntarily provide documents, but will have little information concerning the individuals who subsequently purchased the vehicle.

4) Low Mileage Purchaser Letter (6/96) 
This is a form letter to be sent to the low mileage purchaser of the vehicle. This letter should be sent to the dealership(s) appearing in the chain of title after the car reached the subject/target of the investigation. It requests voluntary production of original documentation relating to the vehicle, and asks specific questions concerning the seller of the car.

5) Title History Letter (6/96) 
This is a form letter to be sent to the state from which you need to obtain the title history of a vehicle. To trace a car, usually an NLETS search will need to be conducted to determine where the car is presently titled. This letter can then be used to order that title history. Receipt of that title history may result in having to order another title history if, for example, the title has been "washed." OCL's experience has been that most states respond more quickly to requests of no more than 15-20 cars at one time (instead of asking for 100+ at once).

6) Subpoena Schedule for Dealer (Not a Subject/target) (6/96) 
This is a form grand jury subpoena schedule designed for use with a dealer (who is not believed to be a subject/target of the investigation) who conducted repeated business with the subjects/targets. When a dealer has had multiple transactions with the subject/target, it is more likely that this dealership can provide helpful information about the subjects/targets. Therefore, an interview (see "Interview Questions" below) should be sought at the time that the subpoena is served. Use of a grand jury subpoena will ensure that all documents relating to all transactions involving the subjects/targets are produced.

7) Alternative Compliance Form for Subpoena Returns (6/96) 
This document is designed to be used with item 6 above. It allows for the dealership who conducted repeated business with the subjects/targets to produce the responsive documents directly to the case agent, rather than appear before the grand jury. Proceeding in this manner allows for the case agent and the attorney to receive and review the documents before bringing the witness before the grand jury, thus allowing for more informed questioning of the dealership (if necessary).

8) Interview Questions (8/99) 
This document presents a number of suggested areas that should be covered in an odometer fraud investigation. Obviously, what questions should be asked of any witness vary on a case-by-case basis. This document is merely suggestive--whether its topics are applicable depends upon the circumstances of the case under investigation.

9) Subpoena Schedule for Corporate Subject/target (6/96)
This is a form subpoena schedule designed for use in seeking records from a subject/target that has been incorporated (i.e., is a corporation). Corporations do not have a fifth amendment privilege, and thus must provide all documents requested. What documents should be sought in any given case will vary on a case-by-case basis. This sample schedule presents documents which typically prove useful in odometer fraud investigations.

10) Subpoena Schedule for Individuals (6/96) 
This is a form subpoena schedule designed for use in seeking records from an individual. Unlike corporations, individuals have a fifth amendment right not to produce certain records. However, because individual car dealers are required under law to keep certain documents, such as odometer statements, the individuals have no fifth amendment right to refuse production of these documents.

11) Subpoena Schedule for Banks (6/96) 
This is a form subpoena schedule designed for use to a bank. It seeks production of financial records pertaining to a subject/target. Under certain circumstances, the government must reimburse the bank for its search expenses (see item 12 below). As a result, certain limitations concerning the dollar value of the checks sought, as well as the dollar value of deposit items, should be imposed.

12) Financial Privacy Notice (For Use with Bank Subpoenas) (6/96) 
This is a form notice that should accompany bank subpoenas. It sets forth the conditions under which banks can receive reimbursement and provides the statutory reimbursement rates.

13) Victim Impact Notice & Statement (8/99)
The is a notice to be sent to consumer victims, in order to gather information about victim losses before a defendant is sentenced.

14) Victim Notification Letter (6/96)
The form is sent with the notice, and is an Individual Victim Impact Statement to be completed by the consumer to describe losses.

15) Victim Form Letter (6/96)
This is a form letter to be sent to the current owner of the vehicle at the conclusion of a case. It informs the owner that the car's odometer has been rolled back and advises the owner of his or her rights.

II. Background Materials: Other Resources, the Law, and Sentencing and Determining Loss

The Office of Consumer Litigation has compiled background materials that may assist you during the course of an odometer fraud investigation. Consumers and others may also be interested in the web page of the Office of Odometer Fraud Investigations of the National Highway Traffic Safety Administration of the United States Department of Transportation. It describes that office’s function, provides information for victims of odometer tampering, and describes cooperative agreements that are available to assist state agency enforcement efforts in this area. The National Odometer and Title Fraud Enforcement Association also has a web page with information on odometer tampering and training conferences that may be of interest to law enforcement personnel.

A) State DMV List (1/6/06) 
See attached State DMV List with related state agencies

B) Major Automotive Leasing Companies List (8/99)
A listing of the contact persons and addresses for the major automotive leasing companies--these companies often were the original owners of high mileage vehicles that subsequently are clocked. Please e-mail consumer.litigation@usdoj.gov for the most recent listing we have of leasing companies.  Be sure to include the word "odometer" in the subject line of your e-mail.

C) National Auto Auction Association Membership Directory
Information on where to obtain a compilation of the names, addresses, and current management of all automobile auctions that are members of the National Auto Auction Association; a list of AuctionNet contributing auctions by region. If you use Carfax in your investigations, this will assist you in determining the auctions in a given region. Please contact NADA directly for its latest directory. NADA can be reached at: http://www.nada.org.

D) Sample Subpoena Request for Handwriting, Photograph, and Fingerprint Analysis, and another document schedule for a target (2004)

E) "Required Records"
At the first link is a subpoena that can be sent to a target that requires the target to produce "required records."  Motor vehicle dealers are required by both federal and state law to maintain certain records.  Thus, state law regulating the dealer should be consulted to determine what records state law requires a dealer to maintain.  These records can be included in a subpoena of this nature.

At the second link is a document that consists of two letters.  Letters as these can be sent by a prosecutor to attorneys for a recipient of a "required records" subpoena.  The letters explain why the subpoena must be answered, and that the recipient cannot simply refuse to produce documents under the Fifth Amendment.  This is because of the "required records" exception to the Fifth Amendment privilege, as explained in the letters. 

F) Relevant Federal Statutes (8/99)
Links to relevant federal statutes are available here.

G) Sample Search Warrant and Affidavit (2004)
Two search warrants and affidavits used in odometer and securities fraud investigations.

H) Sample Indictments (2008)
Four indictments in which the defendants were charged with one or more of the following crimes: conspiracy under 18 U.S.C. § 371, securities fraud under 18 U.S.C. § 513, mail fraud under 18 U.S.C. § 1341, the interstate transportation of falsely made, forged, altered, or counterfeited securities under 18 U.S.C. § 2314, odometer rollbacks/false mileage statements under 49 U.S.C. §§ 32703(2), 32705(a)(2) and 32709(b), money laundering under 18 U.S.C. § 1957, and asset forfeiture under 18 U.S.C. § 982.

More recently, several cases have involved defendants who replaced odometers rather than rolling back the original odometer in the vehicle. A fifth indictment (the “Mellon” indictment) charges instances of such violations not only as odometer tampering, but also as violating provisions of the law that require specific procedures to be followed when replacing an odometer. See Mellon Count 16, charging conspiracy to commit violations of 49 U.S.C. § 32704 (in violation of 49 U.S.C. §§ 32703(4) and 32709(b)) and Counts 17 - 20 charging substantive violations of 49 U.S.C. §§ 32704(a) and 32709(b). Section 32704 requires that when an odometer is replaced, the new odometer must either (1) reflect the previous mileage, or (2) be reset to read zero and a written notice attached to the left door frame of the vehicle specifying the mileage before the odometer was replaced and the date of the replacement.

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I) Three Supreme Court Opinions on Securities Fraud and Mail Fraud (2004)
Several Supreme Court rulings are important to the securities and mail fraud charges commonly used in odometer tampering cases.  Those cases are summarized, and links to the opinions in "Findlaw" are included.  The cases are:  McElroy v. United States, 455 U.S. 642 (1982), Schmuck v. United States, 489 U.S. 705 (1989), and Moskal v. United States, 498 U.S. 103 (1990).

J) Sentencing Cases 
Numerous district courts have made loss findings at sentencing hearings in odometer fraud cases of $4,000 loss per car, or more.  Several of these cases have led to opinions by Federal Courts of Appeals which affirm or refer to these findings.  At the link is a description of some of these cases.

K) Relevant U.S. Sentencing Guidelines (2004) 
Links to the United States Sentencing Guidelines which are typically applicable in a large-scale odometer fraud prosecution are provided at this tab.

L) Letter to Probation for Odometer Tampering Case (2007) 
After conviction, it is necessary to inform the United States Probation Office about the nature of the offenses and the application of the Sentencing Guidelines to odometer fraud cases.  Most probation offices are not familiar with odometer tampering cases, so a letter to the probation office will help that office in writing the Presentence Investigation Report that guides the sentencing process.  This letter explains in considerable detail what we have been arguing in cases throughout the country:  namely, that the consumer harm caused by odometer fraud should be measured at about $4000/car where consumers paid approximately $10,000 for the vehicles. 

To obtain any of the items mentioned in these letters that you do not have, please e-mail consumer.litigation@usdoj.gov.  Be sure to include the word "odometer" in the subject line of your e-mail.

M) Sample Declarations for Use in Sentencing (2008)
Two sample investigator declarations of the type necessary to accompany the letter to probation that is at item "L" above.

The first is a Declaration of NHTSA Odometer Fraud Staff former Special Agent Robert Eppes for use in a case being sentenced under Sentencing Guideline 2B1.1, which applies to offenses completed or continued after November 1, 2001.  The declaration is a "form" with fill-in-the-blank spaces for information regarding a particular case.  Retail price information is discussed in paragraph 6.  Loss of 50% of value resulting from a rollback is discussed in paragraph 8.  Average miles rolled off of the odometers involved in the case is discussed in footnote 2, paragraph 10.  Paragraph 12 deals with the total number of vehicles involved in the scheme.

The second sample declaration is an (unsigned) Declaration of Supervising Investigator Bradley Swartz, of New York DMV.  This declaration is relatively complex and contains more information than is required in most cases.  Mr. Swartz reports on interviews with 30 New York City area dealerships which lead to the conclusion that consumers lose half of what they paid for a vehicle if they sell it as a rollback (paragraph 6). Information on average purchase price is in paragraphs 7 and 14. Average rollback information is in paragraph 9, note 3.  Paragraphs 12 - 15 deal with the total number of vehicles involved in the scheme.

OCL should be contacted if you need declarations from the publishers of the Kelley Blue Book or NADA Used Car Guide explaining that their valuations of used cars are based on vehicles bearing true mileage, as opposed to vehicles that are known rollbacks.  To obtain these items, please e-mail consumer.litigation@usdoj.gov .  Be sure to include the word "odometer" in the subject line of your e-mail.

N) Motion to Authorize Disclosure to Consumer Victims of documents Obtained During the Grand Jury's Investigation (6/96) 
A sample motion to file, if necessary, seeking a court order authorizing the disclosure to the consumer victims of certain documents obtained during the grand jury's investigation.  Normally such motions are not filed, as victim notification takes place during the investigation or sentencing process without any disclosure of grand jury material.

O) NHTSA Office of Odometer Fraud Investigations Staff; NHTSA Odometer Enforcement Case Information Data Form (2004)
The U.S. Department of Transportation, National Highway Traffic Safety Administration (NHTSA), Office of Odometer Fraud Investigations , conducts investigations and provides assistance in odometer tampering matters. A listing of the members of NHTSA's Office of Odometer Fraud Investigations staff is available from the above website. NHTSA's Office of Odometer Fraud Investigations staff is available to provide technical assistance concerning ongoing investigations. Please email OCL at Consumer.Litigation@usdoj.gov and be sure to put the word "ODOMETER" in the title of the email if you need to contact NHTSA's Office of Odometer Fraud Investigations staff, and do not know whom to call.  Timely transmission to NHTSA's Office of Odometer Fraud Investigations staff of information about case investigations will assist in the tracking of ongoing investigations nationwide.

P) National Odometer and Title Fraud Enforcement Association (NOTFEA) Officers and Directors (2004) 
The National Odometer and Title Fraud Enforcement Association (NOTFEA) is a national association of law enforcement agents who seek to eliminate fraud in the automobile industry, thereby protecting consumers. Among other things, NOTFEA has an annual conference in which agents receive intensive training relating to investigative techniques, intelligence data, and legal theories used nationwide to detect, investigate, prosecute, and deter odometer, title, and salvage fraud.  NOTFEA maintains a web site with useful information about the organization at http://www.notfea.org .

Q) DOJ Office of Consumer Litigation Attorneys (2004) 
If you are a federal, state, or local investigator who needs further information about odometer tampering prosecutions and do not know whom to call, please e-mail consumer.litigation@usdoj.gov.   Be sure to include the word "odometer" in the subject line of your e-mail.