Judge’s suspicion puts R$ 5 billion embezzlement investigation at risk

A decision by the 5th Panel of the STJ (Superior Court of Justice) is threatening the investigation born from the Rosa dos Ventos operation, which investigated a tax evasion scheme by fuel distributors in São Paulo.

According to the investigation, the scheme used shell distributors and left a hole of R$ 5 billion in unpaid fines and evaded taxes. Now, all criminal actions initiated from the investigation are at risk because the judge who received the case in the Federal Court was considered suspect.

Valdirene Ribeiro de Souza Falcão is the holder of the 9th Criminal Court of Campinas (SP) and had already been considered a suspect -when the judge is evaluated as incapable of maintaining impartiality- by the TRF-3 (Federal Regional Court of the 3rd Region) because he knew two of those denounced by the MPF (Federal Public Ministry).

According to the request presented by the defense of Claudia Martins Borba Rossi and Miceno Rossi Neto, the families of the couple and the judge were friends until 2009, when they broke up after a disagreement. He was one of the main targets of Operation Rosa do Ventos.

The TRF-3 concluded that Valdirene Falcão should be considered a suspect from the custody hearing resulting from the investigation. The couple’s defense appealed to the STJ and, on September 27, the 5th Panel concluded the judgment, which, by majority, understood that it could not have acted in the case from the beginning, since the disagreement between the families predates the beginning of the case. inquiry.

In a note, the judge says that “all her decisions were made based on the evidence and representations of the Federal Police, Federal Revenue and Federal Public Ministry contained in the records, and that she will respect and comply with the decisions of the higher courts”.

The Federal Public Ministry in São Paulo says it is still waiting for the final decision (the closing) of the STJ decision to decide what to do.

Lawyer Aury Lopes Jr, who represented the couple, says he is awaiting the publication of the ruling to ask for the annulment of seven criminal actions derived from the investigation and another that cites him in the sentence. Miceno Rossi was imprisoned for 20 days and was released on bail of R$ 187,000. The woman, Claudia, had preventive detention ordered, served at home, and her passport withheld.

Not all the actions initiated after the Rosa dos Ventos operation went through the judge of the 9th Court of Campinas, however, according to Lopes Jr, the acts of the investigation, such as breaches of telephone and telematic confidentiality, may be annulled once the suspicion is confirmed.

“We’re going to have a domino effect and even actions that don’t derive directly from the inquiry, but cite it, will also be affected.”

To the STJ, the couple’s lawyer said that the judge saw in the process a chance to get revenge for a private matter involving the two families. For him, the judge exceeded herself in at least three situations, which would demonstrate her partiality in conducting the process.

The first of them, says Lopes, was the distribution of the inquiry in the Federal Court of Campinas. Based on the numbering of the report, it should be forwarded to the substitute judge.

Also according to the lawyer, Valdirene Falcão broke the confidentiality of data from another company that Rossi Neto owned, but which was not the subject of the investigation.

“She asked for the breach of bank secrecy retroactive to 20 years, of telematic secrecy since the creation of the emails, all very excessive”, he says.

The third would be the fixed bail, of R$ 10 million – later it was reduced, in the STF, to R$ 187 thousand.

During the process, the couple’s defense made a disciplinary complaint to the CNJ (National Council of Justice), but the request was denied. Now, the lawyer is considering making a new claim.

Understand what was the operation Rosa dos Ventos

The operation was carried out in two phases, one in 2017, the other in 2018. The MPF, the Federal Police and the Federal Revenue took part.

According to the investigation, Miceno Rossi Neto set up a group of companies that took advantage of the fuel alcohol taxation legislation to defraud tax collection. The group, says the MPF, evaded Corporate Income Tax (IRPJ), CSLL (Social Contribution on Net Income), PIS/Pasep and Cofins (Contribution for Financing Social Security).

Miceno Rossi Neto was denounced in the first stage of the operation, with two more people, who would be his “iron front men”, for tax evasion. According to the MPF, between 2008 and 2011, he used the company Euro Petróleo as a front to stop paying taxes.

The investigation pointed to a debt of BRL 692.9 million in 2017, including interest and fines. Then, in 2018, Rossi Neto’s wife, Claudia, and another “straightforward” were also denounced. In this case, the investigation concluded that they had withheld BRL 17.7 million in 2011 and 2021, generating a debt of BRL 48 million with the tax authorities.

In a third complaint, the MPF accused Rossi Neto’s brother, Adriano, that through front men they would use the company Tux Distribuidora de Combustíveis to withhold R$ 64 million in PIS and Cofins between 2005 and 2008. In 2018, the debt updated amount was R$318 million.