COLUMBUS, Ohio – The Sixth Circuit Court of Appeals has affirmed the conviction of a New Jersey entertainment industry business manager who was convicted at trial in federal court in Columbus.
A jury convicted Kevin Foster, 44, of Montclair, N.J., in August 2018 of 16 counts for his role in an investment scam involving the product “OXYwater”. The court sentenced Foster to 89 months’ imprisonment and ordered to pay nearly $8 million in restitution.
Foster appealed, contending that the evidence supporting one of his convictions was insufficient and challenging the sentence imposed.
The Sixth Circuit Court of Appeals ruled in favor of the United States and affirmed Foster’s convictions and sentence in an opinion filed Oct. 1.
Foster’s case stemmed from the prior prosecution of Thomas E. Jackson and Preston J. Harrison, who collected approximately $9 million from investors under false pretenses to start and market the sports beverage OXYwater through their company, Imperial Integrative Health Research and Development (“Imperial”). The two were convicted by a federal jury in March 2015 of multiple wire fraud, money laundering and tax fraud charges. Jackson and Harrison were both sentenced to 83 months’ imprisonment. Lovena Harrison, Preston Harrison’s spouse, was convicted of various offenses as well and sentenced to 12 months and a day in prison.
In 2015, Jackson and Preston and Lovena Harrison also appealed their convictions, and, in 2016, the Sixth Circuit Court of Appeals affirmed in favor of the United States.
Foster was the principal of his management/accounting firm, Foster & Firm, Inc., and as business manager for Shaffer Smith (“Ne-Yo”), induced Smith to invest $2 million into OXYwater under false representations. Unbeknownst to Smith, Foster also invested additional funds belonging to Smith into the product without his consent and fraudulently took out lines of credit under Smith’s name.
Foster also defrauded a second celebrity client, Brian McKnight, as a way to secure money to help keep Imperial solvent.
Foster stole millions of dollars from Smith and McKnight’s bank accounts in order to fund the operations of OXYwater as well as his own lavish lifestyle, including multiple luxury vehicles, a personal driver, designer watches, and season tickets to the New York Giants and New York Knicks.
In his appeal, Foster challenged the sufficiency of the evidence to sustain his bankruptcy-fraud conviction. Foster attempted to contend that the government did not sufficiently prove a false statement was material to a bankruptcy proceeding; however, the Court of Appeals ruled to uphold the bankruptcy-fraud conviction.
Foster also unsuccessfully contended that the District Court had erred in allowing certain testimony during his trial and had erroneously calculated the amount of loss to victims and the $7.9 million restitution attributable to him. The Court of Appeals affirmed in favor of the government on these points as well.
Appellate Chief Mary Beth Young and Assistant United States Attorney David J. Twombly represented the United States during the various appeals, and Assistant United States Attorney Jessica H. Kim prosecuted the original cases at trial.
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