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4 Convicted In Fraud Scam; Mistrial For Rabbi

by Thomas MacMillan | Apr 13, 2011 7:32 am

(26) Comments | Commenting has been closed | E-mail the Author

Posted to: Legal Writes

Thomas MacMillan Photo 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 (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.

”“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

 

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Comments

posted by: cba on April 12, 2011  10:32am

The content of the note is indicative of the intellectual quality of this jury.

posted by: It's Pretty Scary on April 12, 2011  3:28pm

Someone once asked how can we trust our jury system to people who are not even smart enough to get out of jury duty.

Based upon those questions, it appears truer words were never spoken.

posted by: robn on April 12, 2011  4:38pm

Since when is ignorance of the law a license to break it?...especially for a member of the bar.

posted by: local on April 12, 2011  5:19pm

David Avigdor is a good man. I wish well.

posted by: Noteworthy on April 12, 2011  7:45pm

How much does being a Rabbi have to do with being unable to find guilt? It seems pretty clear to me. HUD1 forms are very specific. When you sign them, you are saying the money is being disbursed a certain way; that cash in to the deal comes from each party; and the disbursements will be according to specific line items. When one knows that is not true, when one takes the money not in an overt “thank you for my certified funds” but takes it brown paper bags, I’m sorry, but there ought not to be much wiggle room. One is left to wonder aboutt the intellect and religious leanings for it surely seems clear to the rest of us.

Hopefully, the new jury in the Cheshire slaughter won’t be flummoxed by the jury instructions.

posted by: slumlords on April 12, 2011  7:53pm

glad they got the other four

posted by: another advocate on April 12, 2011  8:41pm

Great job Howard.

posted by: Read It Again on April 12, 2011  11:29pm

“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.”

It has nothing to do with ignorance of the law.  This is not a murder case, it is a conspiracy case.  The Rabbi had no intent, so he committed no crime.  The jury was supposed to have acquitted him.

The Rabbi EARNED $5,600 processing fraudulent forms on behalf of his crooked clients. Hopefully, the Government will be smart enough (for once) not to waste ten times that amount (or more) on a retrial.

posted by: MM on April 13, 2011  8:05am

SHARPEYE>>>you are NOT so sharp.  This was a FEDERAL CASE in a FEDERAL COURT.  What STATE LEGAL expense????
The cost of this trial and prosecution is borne by ALL US taxpayers, not just the few million in Connecticut.

As a CT and US taxpayer, and someone very familiar with the legal process (holding a Juris Doctor degree) I would hope that the government wastes no more money pursuing David Avigdor.
If it is a case of bad lawyering, not criminal activity, investigation and possible sanctions by the Bar Ethics committee would be far more appropriate than another trial.

posted by: ricky peckerwood on April 13, 2011  8:54am

I might be a little bit prujudice against the federal court system but I think the fact the rabbi was on trial in the first place proves that federal prosecutors are a little overzealous to get “someone”, doesnt have to be the right person just as long as someone gets time. good job prosecutors, but as you were trying these guys real criminals were committing real crimes.

posted by: morris olmer on April 13, 2011  9:29am

The judge never said I lacked an internal moral compass,Glover did.

[Editor’s Note: We checked our notes and stand by our reporting.]

posted by: ED on April 13, 2011  11:18am

Sure. Show up doing the “man of God” act, get a pass on your crimes. In the interest of separation of church and state, how about trying rabbis/priests/“ministers” without disclosing their jobs, so the sheep on the juries can convict without worrying about their souls?

posted by: meta on April 13, 2011  2:52pm

“As a CT and US taxpayer, and someone very familiar with the legal process (holding a Juris Doctor degree) I would hope that the government wastes no more money pursuing David Avigdor.
If it is a case of bad lawyering, not criminal activity, investigation and possible sanctions by the Bar Ethics committee would be far more appropriate than another trial.”

Well MM, as a taxpayer myself, I sure hope that if there’s a case against this suspect (of defrauding us- the taxpayers), he will be prosecuted and brought to justice. If you sign something in an official capacity, you should not only know what it is you’re signing, but the legal implications if in fact the document is fraudulent. I might be wrong, but isn’t that “due diligence”?

posted by: c on April 13, 2011  3:08pm

I agree with MM and Ricky. And btw the cost of a federal fraud investigation and trial like this is many millions not thousands. This jury spent many hours and days seriously considering the evidence and discharging their obligations faithfully. The theory that he wasn’t convicted because he was clergy has no basis. If you followed the coverage, here, you would have seen that the Govt’s main witness could not say that Avigdor was a part of scheme or knew what was going on. And Hey Morris, why did you allow your attorney to try throw Avigdor under the bus?

posted by: April Taxday on April 13, 2011  4:16pm

ED, that’s a far-fetched theory.  Avigdor was dismissed because he wasn’t part of the conspiracy.  He had nothing to gain, and was simply discharging his duties as closing attorney.  There was no intent to defraud.
And I would say that clergy of Avigdor’s particular faith usually get negative, rather than preferential treatment.  I won’t pull a Palin and bring up blood libels, but you know…
And isn’t calling the jury members “sheep” and everybody else attacking their intelligence a bit elitist and patronizing?  They served their duty, gave up lots of time, and listened to days of mind-numbingly boring testimony and instructions.  I give them credit for coming up with intelligent decisions and not just throwing their hands up in disgust.
The feds over-reached in bringing Avigdor in on this charge.  It was a witch hunt, and he got caught in the middle.  Retrying this case would be the ultimate in foolishness.

posted by: One More Thing on April 13, 2011  6:57pm

He is NOT a bad lawyer, either.  In case you’ve never noticed, house closing attorneys do not do anything more than sign their names, and they definitely do not do any investigating to verify the truthfulness of what the parties are signing.

In Florida, lawyers are not even used at house closings (you can have one if you want, but it is regarded as a huge waste of money).

This guy does all his own paperwork yet charges only $300 - $400 a closing.  Most of the lawyers around here have their office assistants do all the work and charge a lot more than that.  Next time, I’m calling HIM.

Oh, and by the way, if you cheat on your income taxes, the accountant who prepares (and signs) the return is not on the hook for your crime.  Unless, of course if he was in on it.

Congratulations Rabbi Avigdor.  Take this Saturday AND Sunday off!

posted by: FormerJuror on April 13, 2011  7:39pm

Just clarify, the vote was 10-1 with 1 undecided to convict Avigdor, it was far from him being found not guilty.  That 1 juror keep harping on the fact that David had a stroke and wasn’t the same man he used to be and he was a rabbi.  10 of us used the evidence and found him guilty but the votes had to be unanimous.  For 2 1/2 days we showed th juror evidence of his involvement and the person refused to budge. The notes were to try and show clarity to change the juror’s mind. And for Morris to say “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.” What notary makes more than a settlement agent?  In the tune of $1,500?  Spare me. Morris states “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.”
In a taped conversation, you said you were far from a moralist…..so doesn’t that make you immoral?

posted by: c on April 13, 2011  8:42pm

Former juror, did the court order you or did you reach an agreement with the other jurors not to disclose what happened during deliberations, or, are the jurors free to discuss it? Will there be juror interviews showing up in the media?

posted by: FormerJuror on April 14, 2011  11:03am

We were told that we could speak to the media and the defendants and attorneys, the only thing that we could not discuss was details of the deliberations and who held out.  So the jurors are free to talk about anything else.  I don’t know who was interviewed…didn’t even know that the foreperson was interviewed.

posted by: Evil Slumlords! on April 14, 2011  11:09am

we need to get all the slumlords behind bars.

posted by: cba on April 14, 2011  11:15am

The comment by ‘One More Thing’ that he would hire the lawyer from this cast of characters really shows what the general public values in legal representation- cheapness and for the “former juror’ weren’t there 12 jurors in the deliberation. These comments are hilarious!

posted by: FormerJuror on April 14, 2011  12:39pm

To CBA “Just clarify, the vote was 10-1 with 1 undecided to convict Avigdor, it was far from him being found not guilty.” 10+1+1=12 jurors

posted by: c on April 15, 2011  4:01pm

Former juror, so why then are you discussing details of the deliberations?

posted by: FormerJuror on April 18, 2011  8:34am

In response to “C”, I haven’t discussed anything about deliberations that we weren’t told we can talk about. I have not discussed in detail the deliberations, or the people who held out ( u could be that person)!  The rabbi should have been convicted but because of some bleeding heart who doesn’t think he can survive in jail….if this is what justice system is all about…u shouldn’t be a juror because u can’t follow directions on sympathy and bias….imagine if we had more jurors like “C”......ur as guilty as the people u associate yourself with!

posted by: April TaxDay on April 18, 2011  2:21pm

wow, formerjuror…
“ur as guilty as the people u associate yourself with!”
was that part of the judge’s instructions to you, or is it a personal legal construct you came up with all by yourself?
Did you inform the lawyers of that one during jury selection?

posted by: Helen and Ed on April 24, 2011  11:57am

A jury did not believe enough evidence to convict David Avigdor was presented - probably because there is no evidence that he knowingly participated in this scam. What ever happened to innocent until proven guilty? The prosecutors in this case were aware that David had no inkling of what the others involved were doing - yet they included him in this fraud case. Now it is time for the “case” against David Avigdor to be dropped. He has learned that he must be more careful and doubting about the “honesty and intentions” of those people he must deal with as both an attorney and a rabbi.

If the prosecutors elect to continue to threaten and harass David Avigdor it will not further their careers but only make them look foolish and vicious. On top of that they would be spending money tax payers can ill afford to throw away on a frivolous second trial of an obviously innocent man.

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