CEO guilty of tax evasion, jury hung on theft
TRENTON >> Thomas Fagan, the founder and former chief executive of Energex Systems, was convicted Thursday of multiple counts of tax evasion.
But jurors came back deadlocked on more serious counts that included allegations the former CEO stole $444,000 from investors and spent it gambling in Las Vegas and Atlantic City and on personal expenses, as well as charges that he laundered more than $87,000 of company funds so he could make political donations to Republicans.
The seven-year odyssey that started in 2009, when investigators were tipped off about possible wrongdoing at Fagan’s company, is not over as prosecutors must decide whether to try Fagan a second time on the counts the jury was unable to decide following a three-week trial before Superior Court Judge Anthony Massi in Mercer County criminal court.
The jury of seven men and five women deliberated over five days but reached only a partial verdict.
After the verdict, one juror met privately with the judge and attorneys to express his reservations about the way the 12-member panel analyzed the case.
But his concerns, which were not specifically relayed by officials when they reconvened in open court, did not impact the verdict, Fagan’s attorneys said.
Jurors were unanimous on 11 of the 15 counts, but remained undecided about counts related to Fagan’s alleged fleecing of investors from his now-shuttered Allendale-based medical device company.
The jury foreman took about 15 minutes to filter through the counts in the indictment while reading the verdict.
Fagan was found guilty of 10 counts related to not filing personal income taxes and business taxes for Energex Systems and Arbios Acquisition Partners.
He was acquitted on a single count of filing a fraudulent tax return in 2010.
Jurors could not reach a unanimous verdict on counts of misapplication of entrusted property, theft, money laundering and misconduct by a corporate official – seconddegree charges that carried a mandatory minimum of five years in prison upon conviction.
The jury’s decision on the tax charges was based in part on testimony from William Makar, a special agent with the state Department of Treasury, who testified that Fagan did not report all his income on tax returns.
Fagan was acquitted of filing a fraudulent 2010 tax return in which he claimed he made $118,156 – or about $60,000 less than what Makar testified records showed he earned.
Fagan owed more than $55,000 to the state – $28,000 from taxes, the rest in fines, penalties and interest, Makar said.
Prosecutors contended the money the former CEO allegedly stole from investors was in addition to the roughly $2.4 million he earned in salary since the company started in 1999.
The state Attorney General’s Office sued Fagan in 2011, for allegedly stealing from investors and selling unregistered securities. Fagan was forced to close Energex and a second business, Arbios Acquisition Partners—which absorbed another bankrupt company—and pay back $11.2 million.
Fagan was responsible for only $1 million in civil penalties. The company’s assets were auctioned off for $420,000.
Fagan’s attorney, Caroline Turner, in her closing argument, described her client’s case as “rubbish.
She chastised prosecutors for their inability to settle on the alleged theft figure, which ballooned at trial.
The $444,000 in investor funds Fagan was accused of taking was significantly higher than the $230,000 the state Attorney General’s Office cited in 2013, when it announced the biotech bigwig’s indictment.
Witnesses also testified to varying amounts that Fagan allegedly took from the company.
Gerald Brignola, a public certified accountant who Fagan consulted, said the CEO owed the company about $975,000.
Alison Callery, a financial fraud analyst, testified that she traced about $319,000 in company funds paid out to Fagan from 2008 to 2011.
Fagan, who did not testify, claimed through his attorneys that he was owed $1,180,472 in deferred compensation. He didn’t cash more than $100,000 in employee checks and loaned the company funds in in lean years, even re-financing his home mortgage to keep the company afloat.
Turner, shedding tears in front of the jury during her closing, suggested Fagan’s bookkeeper, accountant, disgruntled investors and overzealous prosecutors were at fault for the collapse of Energex.
Fagan called New York dentist Ted Korin, who testified on the CEO’s behalf at trial, and relayed the bad news.
“Ted, I’m a convicted felon,” he said.
Fagan was left to wonder about prosecutors’ plan on retrying him on the unresolved counts.
Deputy Attorneys General Peter Gallagher and Derek Miller declined to comment.
Jurors declined to comment when approached by The Trentonian.
Fagan thanked a juror for his service outside the courtroom.
“I appreciate your service regardless of how you voted,” he told the man, who did not respond.
The juror stuck around after everyone left and asked to speak with Massi.
Minutes later, attorneys were called back into the courtroom and spent about 15 minute in chambers.
They returned at some point and the judge chalked up the juror’s concern to “normal deliberations.”
Fagan, who remains free and left the courtroom after ward, is scheduled for sentencing Sept .23.
He expects the fight with the state will go on.
“I’ve been battling it for seven years,” Fagan said. “I’ll continue to battle.”