US v. Rust et al.

On May 8, 2019, A federal grand jury in Salt Lake City returned a six-count indictment charging Gaylen Dean Rust, Denise Gunderson Rust, and Joshua Daniel Rust in connection with an alleged scheme to defraud investors by inducing them to purchase investments in a fraudulent silver trading program.  All three defendants are charged with wire fraud conspiracy in the first count of the indictment and money laundering conspiracy in the second count.  Gaylen Rust is also charged with two counts of securities fraud.  Denise Rust and Joshua Rust are each charged with one count of money laundering.

The indictment alleges that from around 1996 and continuing to Nov. 15, 2018, the defendants conspired to defraud investors and potential investors by offering and inducing them to purchase investments in a silver trading program.  According to the indictment, Gaylen Rust, who offered and sold investments in the program, made false and fraudulent statements regarding his scheme, both directly and indirectly, to investors and potential investors through various means including meetings, phone calls, mailings, and emails.

The indictment alleges the defendants failed to disclose to investors, among other things, that investor funds would be used for purposes other than to invest in silver and trading silver; that Gaylen Rust was not licensed to sell securities, trade commodities or operate a commodity pool; that investor funds were being laundered through transfers in and out of their the defendants’ personal accounts; and that investment account statements provided to investors were false and not based on actual silver trades.  
 
In order to convince investors that their investments were profitable and to convince potential investors that the silver program was earning money, the defendants operated the trading program as a Ponzi scheme.  The defendants used investment money from later investors to pay the promised returns to earlier investors, creating the false impression that the silver trading program was profitable, the investments were safe and secure, and that the promised returns were being generated.  Ponzi payments of approximately $150 million were made to investors, representing those payments as profits from the operation of the silver trading program.

Update on March 8, 2022:

On March 8, 2022, defendant Joshua Daniel Rust pled guilty to Charge 1, Misprision of Felony. 
Any remaining counts will be disposed of at the time of sentencing. As a result of the guilty plea, there will be no trial involving this defendant.
The sentencing hearing for defendant(s), Joshua Daniel Rust, has been set for May 31, 2022, 10:00 AM at Rm 8.300, Federal Courthouse, 351 South West Temple, Salt Lake City, UT, before Judge Ted Stewart.

Defendant Gaylen Dean Rust was sentenced by the Court. The Court ordered the defendant to the following:
Incarceration of 19 year(s)
Followed by Supervised Release of 3 year(s)
Special Assessment of $300.00

Update on March 3, 2022:

Please see information below for the change of plea hearing scheduled for Joshua Rust:
Tuesday March 8, 2022 @11am before Judge Pead
Call-in number: 877-336-1839
Access Code:      9420440

Update on February 24, 2022:

Joshua Rust is currently set for a Change of Plea hearing on 3-8-22 at 11:00 MST.  As a reminder, the ZOOM link will not be available until 24 hours prior to the hearing.

Update on December 21, 2021:

On December 20, 2021, defendant Gaylen Dean Rust pled guilty to the charges listed below. Any remaining counts will be disposed of at the time of sentencing. As a result of the guilty plea, there will be no trial involving this defendant.

The trial previously scheduled for defendant(s) Gaylen Dean Rust on April 11, 2022, 08:30 AM at Rm 8.300, Federal Courthouse, 351 South West Temple, Salt Lake City, UT has been cancelled. VNS will continue to provide you with updated case scheduling and event information.

The sentencing hearing for defendant(s), Gaylen Dean Rust, has been set for March 8, 2022, 10:00 AM at Rm 8.300, Federal Courthouse, 351 South West Temple, Salt Lake City, UT before Judge Ted Stewart. You are welcome to attend this proceeding; however, unless you have received a subpoena, your attendance is not required by the Court. If you plan on attending, you may want to verify the date and time by using the VNS Call Center or website. If you are a victim of the charged offense(s) and wish to speak at sentencing, please call our office well in advance of the scheduled hearing date.

It is helpful for the Court to know the impact of this crime on its victims. In an effort to provide this information to the Court, we are enclosing a Victim Impact Statement. If you choose to complete a statement, please email it to USAUT.Victim.Witness@usdoj.gov

This is one way the Court can hear your concerns as they relate to the crime. A United States Probation officer may also contact you in an effort to obtain additional victim impact information. Victim impact information is generally not public information; however, under criminal law and procedures, all information contained in your questionnaire, will be disclosed to the defendant and his attorney.

Paying victims back for their losses is very important. Restitution is part of an offender's criminal punishment and is meant to hold each offender responsible for his/her actions. The judge may consider restitution as part of the sentence. However, it is important that you provide to the court, a description and the amount of your losses that related to the crime.

It is also very important that we receive your Victim Impact Statement, along with your financial loss information, within 30 days of receipt of this letter. Blank copies of the victim impact statement may be found here: 

You MAY use this form or you can just send an email to USAUT.Victim.Witness@usdoj.gov

You will also find a handout on the webpage that may be helpful. 

Update on December 14, 2021:

RESPONSES TO FREQUENTLY ASKED QUESTIONS REGARDING GAYLEN RUST PLEA AGREEMENT

Thank you for your feedback regarding the proposed plea agreement with Gaylen Rust. We have received a number of responses. This document responds to the most frequently asked questions and/or comments we’ve received regarding the proposed agreement.

Why isn’t Mr. Rust pleading to all six counts in the indictment?

Mr. Rust is not charged in all six counts. He is charged in four counts (Counts 1, 2, 3 and 4). The last two counts in the indictment did not involve Gaylen Rust. They charged Denise Rust (Count 5) and Joshua Rust (Count 6) with conducting monetary transactions in violation of 18 U.S.C. § 1957. 
Mr. Rust is pleading to three of the four counts against him. This includes wire fraud conspiracy (Count 1), money laundering conspiracy (Count 2), and one of the two securities fraud counts (Counts 3 and 4). These three counts cover the entire scope of his criminal conduct. The fact that he is pleading to one (instead of two) counts of Securities Fraud will not likely affect the Court’s determination about the reasonableness of the proposed sentence, because the Judge can still consider the conduct in that count as relevant conduct.
To that end, the plea agreement specifically provides that, in determining the reasonableness of the proposed sentence, the Court may consider not only the counts to which he pleads guilty, but also all “relevant conduct.” This includes all uncharged conduct and conduct to which he did not plead guilty. The plea agreement states in relevant part:
Relevant Conduct. I understand and agree that the Presentence Report may include descriptions of conduct I engaged in which either was not charged against me, will not be pleaded to by me, or both. I understand and agree that the Court will take these facts into consideration in determining the reasonableness of the stipulated sentence. 

What do the restitution and forfeiture numbers mean? And what is the status of the Receiver’s work?

Because of the charges to which he will plead guilty, Mr. Rust is required to pay restitution under 18 U.S.C. § 3663A. Based on forensic accounting analysis, the $153,073,328.32 restitution figure represents the net loss suffered by investors in the Rust scheme. This loss amount excludes “net winners,” meaning it excludes those investors who received more in payouts than the principal they invested. Mr. Rust will agree not to contest this amount.
The law also requires that Mr. Rust forfeit the proceeds of his crimes. 18 U.S.C. § 981(a)(1)(A), 28 U.S.C. § 2461, and 18 U.S.C. § 981(a)(1)(A). Because the proceeds from the Rust scheme were largely spent, and because the Receiver has taken control of the assets that remain, the law allows the court to impose a forfeiture money judgment, rather than the forfeiture of specific assets. Mr. Rust will agree to the imposition of this judgment. The money judgment is in the same amount as the restitution order, and the United States will recommend that if any amounts are collected on the forfeiture judgment, they be applied to satisfy the restitution order.
Both the restitution and forfeiture orders will supplement the Receiver’s efforts to marshal assets and make distributions to investors. The Receiver’s work is ongoing, and you can see the latest updates from the Receiver at the website rustrarecoinreceiver.com. 

Is the proposed 19-year sentence sufficient?

We recognize that no sentence can adequately compensate you for the suffering, betrayal, and financial hardship caused by Gaylen Rust. Thank you for sharing your experiences through our victim notification system. 
The law requires that a sentence be “sufficient, but not greater than necessary” to meet the sentencing factors described in 18 U.S.C. § 3553. These factors require a court to consider, among other things, the nature and circumstances of the offense, the history and characteristics of the defendant, the need the for the sentence to promote respect for the law and impose a just punishment, the need to deter future crimes and protect the public, the kinds of sentences available, the need to avoid unwarranted discrepancies, the need for defendant to get educational or vocational training or medical care, and the need for restitution. The court must also calculate and consider the advisory range under the United States Sentencing Guidelines.
The proposed plea agreement would be made under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Under this rule, the parties present the plea to the Court, and the Court can decide whether 19 years is appropriate. If the Court finds the proposed sentence is too high or too low, then it can reject the agreement, the plea will be withdrawn, and the parties will move the case forward to trial and/or come up with a new plea agreement. Victims will have the chance to address the Court regarding their views on the plea agreement and the reasonableness of the sentence. Ultimately, all sentencing authority is vested in the Court, who will determine whether the proposed sentence is reasonable.
We believe 19 years is a significant sentence, and would be appropriate under the sentencing law as set forth in 18 U.S.C. § 3553(a). We will present this resolution to the Court, and the Court will determine whether to accept this proposed agreement.”

Update on December 09, 2021:

The change of plea in this matter has been rescheduled to December 20, 2021 at 11:00 a.m.   Zoom information for this hearing will be available 24 hours prior to the hearing and will be sent to the victims.

While the Defendant is currently scheduled for a Change of Plea, all requested opinions received from the victims in this matter are being considered.  These letters and emails are being carefully read. A Magistrate Judge will handle the plea hearing, but the final determination as to whether or not the plea is accepted is up to the District Court Judge, who will make that determination at a later hearing.

Update on December 01, 2021:

The United States is considering a plea agreement with Gaylen Rust.  This letter outlines the terms of the contemplated plea agreement and seeks your input if you are a victim in this matter. 

Under the terms of the proposed plea agreement, Mr. Rust would plead guilty to Counts 1, 2, and 4 of the indictment and admit to facts sufficient to support those counts.  In exchange, Mr. Rust’s sentence would be 228 months (which is 19 years) in federal prison.  He would also agree to restitution in the amount of $153,073,328.32 and a forfeiture money judgment in the same amount.  

This agreement would be made pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, which means that if the Court does not believe the proposed sentence of 228 months is appropriate, it can reject the agreement, and Mr. Rust would be allowed to withdraw his plea.  In the event that happens, the parties can either reach a different plea agreement or proceed to trial.

The proposed sentence of 19 years is significant, and would ensure a lengthy period of incarceration for Mr. Rust. (Unlike the state system, the federal system does not allow for parole).

Request for Input
If you want to inform the United States Attorney’s Office of your views regarding the proposed plea agreement, or any other aspect of the case, please send an email to:  USAUT.Victim.Witness@usdoj.gov before December 9, 2021.

• The trial for Gaylen Dean Rust and Joshua Daniel Rust is now scheduled to begin 4/11/2022 at 8:30 AM.

• Denise Rust pleaded guilty to money laundering on July 2, 2020. She was sentenced to 18 months in prison on Sept. 10, 2020.  When she finishes her prison sentence (there is no parole in the federal criminal justice system), she will be on supervised release for 36 months. She was ordered to pay $1,774,356.93 in restitution.