Thomas MacMillan Photo
Rabbi Avigdor with his attorney, Howard Lawrence.
Jurors had little trouble finding four other people guilty in a mortgage fraud scheme, but they just couldn’t agree on how much Rabbi David Avigdor knew about what was going on.
That’s how a jury foreperson explained what happened Tuesday in Hartford federal court, where a judge declared a mistrial for Avigdor.
The jurors were considering the fate of Avigdor and four other defendants accused of taking part in a 15-member conspiracy that defrauded government and private lenders of millions of dollars and left blighted homes scattered through New Haven and surrounding towns.
On Tuesday afternoon, their fourth day of deliberations, the 12 jurors made a final announcement at 2:25 p.m.
The jurors said they could not reach a verdict on Avigdor, who’s a senior New Haven rabbi and attorney. They found his four co-defendants, including former alderman and state legislator Morris Olmer, and New Haven landlord Marshall Asmar, guilty of conspiracy, wire fraud and making false statements.
Judge Alvin Thompson in U.S. District Court in Hartford declared a mistrial for the rabbi.
“You’re excused if you’d like to leave,” the judge told Avigdor.
Thomas MacMillan Photo
Avigdor (pictured) stood up and gave his attorney, Howard Lawrence, a fierce hug.
“I’m just thankful to God,” said Avigdor later, outside the courthouse. “I’m going to go back and continue with my calling to help people.”
With a mistrial due to a hung jury, the government has the opportunity to re-try the case against Avigdor. Prosecutors declined to comment on whether they will pursue that option.
Mazel Tov
Tuesday’s verdicts came after days of waiting at the courthouse by defendants and lawyers on both sides. It had been a week since the jury had begun its deliberations. Jurors were given Thursday and Friday off (Judge Thompson was away at a conference), after they delivered a note last Wednesday saying that they were unable to come to a decision on one or more of the counts. On Tuesday, they were still unable to come to complete consensus, hence the note that arrived at 2:25 in the afternoon:
“The jury wishes to report unanimous verdicts on each and every count with respect to each of four of the defendants. In addition, the jury reports a continuing impass [sic] on every count with respect to a fifth defendant.”
By 3 p.m., the jurors had filed back into the courtroom to deliver their verdicts. The foreperson signed off on the verdict forms and they were read aloud by the courtroom deputy.
Morris Olmer was first. He didn’t visibly react as the deputy announced that he had been found guilty of one count of conspiracy, eight counts of wire fraud and four counts of making false statements. The other defendants were similarly stoic as their guilty verdicts were read out. Asmar was found not guilty on several of the many counts against him, but guilty on the majority of the counts.
Outside the courtroom, Avigdor’s attorney, Howard Lawrence, offered his final word on the matter, a line from Shakespeare: “‘Praised be God, and not our strength, for it.’”
Avigdor pronounced Lawrence the finest defense attorney in the city of New Haven.
“Only the city?” Lawrence asked.
Outside the courthouse, Patrice Callender, the jury’s foreperson, said the deliberations were very thorough. “We didn’t want to rush to judgment,” she said.
The days of deliberation included “a lot of discussion, but not a lot of disagreement,” said Callender, who’s a fiscal administrator in the state Department of Banking.
The disagreement came on the case of Avigdor. With him, the question came down to how much he know of the whole conspiracy, she said. “It basically was how much was he involved.”
Callender declined to say how many jurors had been for or against acquittal for Avigdor.
Internal Compass
Back inside the federal building, the now officially guilty parties waited for Judge Thompson to take up the matter of their release and sentencing dates.
Olmer sat in a chair in the stone-paneled second floor hallway, outside the South Courtroom.
“I’m very disappointed,” he said. “I’m very unhappy with this verdict. I certainly didn’t do anything the least bit illegal, immoral, or unethical.”
Olmer.
Olmer (pictured) said he didn’t make “a dime” off his work as a notary on the mortgage deals in the scam, beyond his legitimate fees as recorded on the official mortgage forms. He didn’t walk away with any bags of cash, he said.
“If at all possible, I intend to appeal and do what I can to see about having this corrected.”
Olmer, who will be 83 years old on May 1, said he’s thankful for his “wonderful son and wonderful daughter.” They’ve both been very supportive “and totally believe in my innocence,” he said.
Just after 5 p.m., when Judge Thompson returned to the bench, Olmer’s attorney requested that her client be released pending sentencing.
“We have some concerns about Mr. Olmer,” said Assistant U.S. Attorney Eric Glover. He said that Olmer was found to have engaged in the unauthorized practice of law just one month after he was indicted in the mortgage fraud case in June 2010. Olmer had previously surrendered his law license to avoid disbarment after questionable legal dealings.
Then in July 2010, after he was charged and arraigned in the mortgage fraud conspiracy, Olmer again was found to have engaged in the unauthorized practice of law in connection with a real estate closing that never went through, Glover said.
“It gives us great concern about him,” Glover said. He suggested electronic monitoring for the 82-year-old.
Olmer’s attorney, Audrey Felsen, said “a stop was put to” the unlawful attorney work. “He knows he can’t do that.”
“Mr. Olmer seems to lack an internal compass, so I think electronic monitoring would be good,” Judge Thompson said.
Olmer and the other three guilty parties were allowed to go, with electronic location monitoring ordered for each of them in advance of their sentencing on July 1.
At 5:15 p.m., court was adjourned, five weeks after the trial opened.
Jury Grapples
Tuesday’s proceedings followed a day in which the jury signaled it was grappling with the central question surrounding Rabbi Avigdor’s defense: Was he a full-fledged conspirator in a multi-million-dollar mortgage fraud scheme, or simply a lousy lawyer?
A note came out from the deliberation room Tuesday with three questions indicating jurors were pondering that question.
On Monday, the third day of jury deliberations, the five defendants spent the day waiting. A verdict never came.
What did come, at 3:25 p.m., was single piece of paper from the jury containing technical questions on whether certain actions by a not-so-hypothetical “settlement agent” show “bad purpose” or fulfill elements of a wire fraud charge.
The questions were a clear reference to Avigdor, who acted as a settlement agent on over a dozen phony mortgages. Government prosecutors say he knowingly signed off as an attorney on federally backed mortgage loan applications, then funneled money through a special account, making transfers that were never recorded on the official “HUD‑1” forms. Avigdor and his defense attorney, Howard Lawrence, say the rabbi was simply doing what his clients asked of him and didn’t know he was playing a role in anything illegal.
After some discussion with attorneys Monday, Judge Thompson declined to answer the jury’s questions directly. He opted instead to refer jurors to — and read aloud to them — certain sections of their instructions for deliberation.
After delivering a few lines of Shakespeare to the wood-paneled courtroom, Lawrence said later that if the jury answers its own questions as the law requires it to, it would find Avigdor not guilty.
The Note Doth Tell
Defendants and their lawyers spent much of Monday “pacing the hallway like an expectant father,” as defense attorney Matt Corrente put it.
Many had expected the jury to deliver a verdict last week, or at least before lunch on Monday. The jury’s labor has gone long past its due date.
The wait caused one attorney to wax poetic.
Rabbi Avigdor and attorney Lawrence (right).
”“Tomorrow and tomorrow and tomorrow, creeps in this petty pace from day to day, to the last syllable of recorded time,’” Lawrence announced Monday morning, as he entered stage left into the hallway outside the courtroom.
After his soliloquy, Lawrence sat in a chair next to Olmer, chatting about the practice of law. Olmer was planted for the day next to one of the doors to the courtroom, where he completed two photocopied crossword puzzles over the morning and afternoon, including the one from the Sunday New York Times Magazine.
The day ticked by slowly until 3:25 p.m., when a stirring in the courtroom indicated that the jury had delivered a note. The missive listed three questions written in loopy handwriting:
“If a settlement agent is found to have signed a HUD‑1 [a mortgage form for loans backed by the federal government] without reviewing the HUD‑1, does the act of signing the HUD‑1 satisfy the second element of the crime (of wire fraud) as explained on page 28 of the jury charge?
“With respect to aiding and abetting: Is the act of a settlement agent in signing a HUD‑1, by itself, enough to satisfy ‘bad purpose’ as described on page 45 of the jury charge?
“With respect to aiding and abetting, if a defendant is found to be and aider and abettor, is his or her criminal intent a substitute for the second element of the crime (wire fraud) as explained on page 28 of the jury charge?”
It was obvious that the questions concern Avigdor alone, as the only settlement agent among the defendants. The jury seemed to be trying to determine if Avigdor committed a crime if all he did was sign forms without looking at them closely, and if said signing is enough to nail him for aiding and abetting the conspiracy.
The arrival of the letter elicited more Shakespearean prose from Lawrence, who quoted Henry V, from the last scene of the eponymous play. “This note doth tell me of 10,000 French that in the field lie slain,” he said. “Ay, there’s a royal fellowship of death.”
Avigdor had just returned to the courtroom from his car, where he spent the day sleeping and praying, according to his lawyer. He looked on with apparent confusion.
“Dad, you’re freaking David out,” said Marcela Lorenz, Lawrence’s office manager and daughter.
Tricky Questions
At 3:50 p.m., all rose as Judge Thompson entered the courtroom.
“Please be seated,” he said.
Lawrence remained standing. “I’ve read the notes. I think an answer by the court yea or nay would amount to a directed verdict,” He said. He said that the answer to all the questions, should be “no,” but acknowledged that the judge probably couldn’t say as much to jurors.
Assistant U.S. Attorney Eric Glover, the lead prosecutor, didn’t agree. “I think it’s a tricky question,” he said.
Glover, Lawrence, and Thompson went on to parse each question in turn, trying to divine the intent and specific cause for confusion of the jury. Avigdor leaned forward in his rolling leather chair and put his elbows on the table in front of him, following the discussion closely.
The conversation hinged on the question of whether the jury was asking if signing the forms (with or without reviewing them) was enough on its own to constitute ill intent and be an element of wire fraud, or if jury was asking if the signing of the forms could be part of wire fraud along with other evidence.
After some discussion of a intent of a party and extent of evidence and considerations of the presence or lack of “good faith” by an actor in the trial, the judge said he would not answer yes or no to any of the questions and determined to which sections of their instructions he would refer jurors.
The jurors filed in at 4:22 p.m. Judge Thompson first directed them to page 33 of their charge, which states the burden is on the government to prove a lack of good faith. That is, it’s up to the prosecutors to show that Avigdor knowingly acted to commit a crime.
The judge directed the jury to pages 45 and 46, which also address the issues of will and knowledge in the commission of potentially criminal acts. The government must prove that a defendant engaged in overt acts for the specific purpose of bringing about that crime, Judge Thompson said. As for the question of aiding and abetting, that again comes down to intent and knowledge.
With that, Thompson dismissed the jury for the day.
Later, outside the courthouse, Lawrence said that if the jurors answer their own questions “as stated in law, their only option will be a not-guilty verdict.”
Previous coverage of this case:
• Jury Can’t Agree In Scam Trial
• Avigdor’s Final Plea: Follow The Money
• Claire: The Rabbi Is Kosher
• Wednesday The Rabbi Took The Stand
• Straw Buyer Lured Into A Wild Ride
• After Big Fish Plead, Smaller Fry Point Fingers
• Slum-Photo Doctor Makes A Call
• What Happened At Goodfellas Didn’t Stay At Goodfellas
• Fraud Trial Opens With Oz-Like Yarn
• “Partying” MySpacer Lined Up Scam Homebuyers
• “Straw Buyer” Pleads Guilty
• Neighbors, Taxpayers Left With The Tab
• FBI Arrests Police Commissioner, Slumlord, Rabbi
• One Last Gambit Falls Short
• Was He In “Custody”?
• Is Slum Landlord Helping The FBI?
• Feds Snag Poverty Landlord
• Police Commissioner Pleads
The content of the note is indicative of the intellectual quality of this jury.