A federal judge recently denied a motion to dismiss the wire-fraud-conspiracy charge against a former Macomb County car salesman on allegations he illicitly gave employee discounts to ineligible customers.

U.S. District Judge Mark Goldsmith earlier this month maintained the charge against Apollon Nimo, who was indicted in May 2022 on a charge of conspiracy to commit wire fraud in on allegations he schemed to provide the 5% employee discounts for Fiat Chrylser Automotive vehicles from 2014 through 2021 while he worked at Parkway Chrysler Dodge Jeep RAM in Clinton Township. His alleged co-conspirator is Farrah Bottris Bahoo, whose case is also pending.

Nimo contends his conduct does not fall within criminal-fraud behavior so the charge should be dismissed.

But Goldsmith says he disagrees with Nimo based on the assumption the allegations against him are true.

“Contrary to Nimo’s claim, the indictment alleges far more than a mere breach of contract” but rather “a yearslong course of action in which the Defendants defrauded FCA with respect to the EP program,” Goldsmith says.

“FCA bore the cost of that discount,” the judge says, further noting the indictment “alleges that Nimo engaged in the scheme for personal gain — to increase his volume of sales and his compensation from the dealership and FCA. These allegations sufficiently allege a scheme to defraud.”

Goldsmith also rejects the argument that “a scheme to defraud must involve underlying conduct that is itself criminal,” pointing out, “That is not the law in the Sixth Circuit (Court of Appeals). A scheme to defraud ‘must be reasonably calculated to deceive,’” but it does not need to be “fraudulent on its face. As the Sixth Circuit has explained, ‘the ‘essence’ of fraud is that the victim is persuaded to believe that which is not so,”’ and “‘it is the scheme itself — the act of acquiring or attempting to acquire the funds through fraudulent means — that the statute punishes.’”

Nimo also contends language in the wire-fraud and conspiracy statutes is vague as applied in this case, and Nimo was not provided “fair notice” that “conduct amounting to a breach of contract is a crime.”

But Goldsmith disagrees and points to a 2020 case, U.S. v. Zhou, that says “the scheme itself that forms the basis for the Indictment, not any collateral contract breaches.”

“Nimo attempts to recast the factual allegations in the indictment as a breach of contract, but ‘[t]he simple fact that [a victim] may have brought a civil contract claim against defendants does not immunize defendants’ conduct from criminal prosecution if that conduct meets the elements of the criminal statutes as well.’ Whether a civil remedy might exist is irrelevant and does not make this criminal prosecution improper.”

Nimo had “fair notice” in the law that his alleged actions could constitute criminal behavior, the judge says.

The law applies to “‘any’ scheme or artifice to defraud, regardless of the type of scheme,” as stated in a prior case, U.S v. Jasen, he says.

He quotes another case, U.S. v. Nelson of 2013, “Ignorance of the fact that one’s conduct is a violation of the law is no defense to criminal prosecution.”

The judge also notes others have been convicted under similar circumstances, such as in U.S. v. Ali, “where defendants fraudulently obtained software at educational-user discounted price.”

In a 2023 court document, Nimo’s attorney, Patrick Hurford, defended his client by alleging FCA seemed to encourage his client’s type of alleged behavior by offering a volume-growth sales program to salesperson to “prioritize unit sales over per unit profit.”

“Nimo witnessed FCA salespersons steal customers’ employee numbers and give or sell them to ineligible customers without any ramification from FCA. (Nimo was not involved and there is no allegation or evidence Nimo ever stole an FCA employee number.),” Hurford said.

Nimo, who started working at Parkway in 2009, said he was the national top-selling salesperson at the company at one point. He sold about 10,000 vehicles for FCA from 2014 to 2021, according to Hurford. Nimo generated “hundreds of millions of dollars for FCA,” and “FCA never complained about Nimo’s performance,” Hurford wrote.

Nimo and Bahoo are scheduled for a June 17 trial, but there is a hearing scheduled for April 29, at which time the defendants could enter pleas. A pretrial is also scheduled for May 13.