Was He In ​“Custody”?

Two federal agents showed up unannounced in the Whalley Avenue office of a former state legislator-turned disbarred lawyer. They led him upstairs to an empty room.

You’re under investigation, they told him. Want to talk?

Morris Olmer, the ex-lawyer, did talk.

Now he’s facing a federal criminal trial. And he wants the feds to let go of what he told them that day.

His pitch: The agents never read him his right to remain silent. So what he told them shouldn’t be used against him in court.

A federal court judge considered Olmer’s pitch Friday, along with a pitch from another defendant in the same case, Rabbi David Avigdor, to have the government show him more of the evidence they claim to have against him. (“I will prove my innocence, because I would never, ever do” what the government accuses him of doing, Avigdor said at the time of his arrest. He has avoided comments to the press on advice of his attorney.)

Olmer and Avigdor were among 15 people — some of them prominent local figures (including a West Haven police commissioner) — arrested last June and accused of taking part in a mortgage fraud that cheated taxpayers, cost lenders (including the government) some $3 to $4 million, and helped plunge some New Haven neighborhoods further into blight. (Click here to read about that.) Avigdor and Olmer said at the time of their arrests that they did nothing wrong and were being framed.

Their case has been slowly working its way through the court. Friday they had a hearing before Judge Alvin W. Thompson in U.S. District Court in Hartford on Olmer’s and Avigdor’s pre-trial pitches. The pitches center on what agents have to do when they obtain damning information on an initial surprise visit, and on how much evidence needs to be shown to a defendant at this stage of a case. Thompson didn’t rule from the bench.

Define ​“Custody”

FBI Special Agent John Keaney and a second agent approached Olmer in his second-floor Whalley office last May 13.

Olmer, who had turned 82 years old12 days earlier, is a former state representative and New Haven alderman. He lives in New Haven’s Beaver Hills neighborhood. He came to the attention of law enforcement investigators over the past decade for a series of allegedly fraudulent real-estate transactions which he handled. His license to practice law was suspended in 2007; he permanently resigned from the bar in 2008 and was later arrested in connection with the investigation.

That was all separate from the matter that brought Agent Keaney to Olmer’s door last May.

Olmer continued coming to a law office to work after resigning from the bar. He did support work for a licensed lawyer, Rabbi Avigdor.

Agent Keaney informed Olmer that a bunch of agents had arrived to search his office in connection with a federal investigation. He ushered Olmer to the building’s third-floor. The feds had obtained permission to use a vacant office there. Olmer went with them upstairs.

Keaney told Olmer that ​“he was not in custody and that he was free to leave any time,” according to a complaint filed by Olmer’s lawyer, Audrey Felsen.

Olmer decided to talk anyway. The feds asked him about his alleged role in schemes to buy and inflate values on distressed properties, then stiff government and private lenders and pocket the cash. A New London-based operation had sent fake buyers to pretend to purchase homes (in return for, in at least one case, a bag full of $10,000 in cash), while the operation’s orchestrators worked with lawyers and appraisers and fake contractors to pretend to fix up the houses in order to receive six-figure mortgages, on which they defaulted, according to federal indictments. The rundown properties, many in struggling New Haven neighborhoods, further deteriorated and remained empty. Olmer allegedly prepared some of the fake documentation in those closings. The feds said they caught him on secretly recorded conversastions, including one in which he allegedly told someone at a closing to avoid responding to questions from a lender about bank statements. ​“You don’t need them [the lender] investigating you guys as to what’s been happening,” he allegedly advised. (Olmer previously defended his conduct at length in this Independent story.)

During the May visit, Olmer answered agents’ questions about all this. Now, in his motion before Judge Thompson, Olmer’s attorney argues that Olmer was in effect ​“in custody” during that conversation — and as such should have received a Miranda warning about his legal rights and the possibility of information being used against him. Olmer is asking Thompson to order any information obtained during that interview suppressed from the case.

Citing a ruling in a case called Oregon v. Mathiason, Olmer’s attorney argued in her brief that the ​“government’s obligation to administer Miranda warnings arises when a person’s freedom is restrict to a degree that renders him ​‘in custody.’”

“A reasonable person faced with the circumstances under which Mr. Olmer found himself would perceive himself to be in custody,” attorney Felsen wrote. The defendant was led to a vacant third-floor room by two law enforcement agents during the execution of a federal search warrant of his office. The officers told the defendant that he was the subject of a federal investigation and they wanted to ask him questions related to their investigation. Two agents questioned the defendant in this environment. Under the circumstances a reasonable person would not have felt that he could simply terminate the interview, or ask the agents to leave. The defendant was thus ​‘in custody’ for purposes of Miranda and should have been advised of his rights.”

Click here to read the full brief.

In arguing against Olmer’s motion, the feds note that Agent Keaney told Olmer that he wasn’t in custody. Olmer wasn’t handcuffed. He could have left any time. He volunteered to answer questions.

Olmer was ​“in surroundings entirely familiar to him — his own law office,” Assistant U.S. Attorney Susan Wines wrote in the government’s response brief. ” … There is no evidence that the interviewing agents … used anything but a polite, non-threatening, conversational tone.”

Click here to read the government’s brief, which includes extensive citations of previous cases bearing on the issue.

Enough Evidence?

A separate motion submitted by Howard Lawrence, the lawyer representing Rabbi Avigdor, presses the government to provide more information of its case against Avigdor, whom the feds accuse of preparing false documents concerning alleged rehab work allegedly (but not really done) by a fake company, in order to receive federally insured loans.

The motion is for a ​“bill of particulars.” Under the law, a defendant has a right to see enough of the evidence presented against him in order to be able to mount a defense, avoid surprises at trial, and protect himself against a retrial. Lawrence’s motion argued that the government failed to provide Avigdor with enough of the evidence in this case. The government hasn’t offered any ​“adequate” information about ​“overt acts” or ​“omissions” on which it bases its charges that Avidgdor was engaged in wire fraud, conspiracy to commit mortgage fraud, and preparing false statements, Lawrence argued.

The motion asks the government to release the dates and the ​“nature” of the statements on which the government will rely to prove that a conspiracy existed.”

Click here to read the brief.

AUSA Wines listed the evidence the government has publicly cited and provided to Avigdor in her response brief arguing against his motion. It notes numerous specific transactions in which Avigdor allegedly filled out federal Housing and Urban Development department forms documenting that tens of thousands of dollars were being forwarded to a supposed seller in these fake transactions, when in fact he allegedly wired the money to the account of a sham outfit called Sheda Telle Construction. The federal indictment against Avigdor cites eight specific cases of alleged wire fraud and four specific false statement citations, Wines wrote.

Meanwhile, during the discovery phase of the trial, the government has ​“turned over 21 discs containing tens of thousands of documents collected from various sources in electronic format and recorded calls. The government has also supplied the defendant with a preliminary witness list when it made its initial disclosures in this case. Further, the government has informed the defendant that additional information in the form of witness interview memoranda (memos that would not otherwise be due until a much later date) will be made available promptly upon the entry of a protective order,” Wines wrote.

“The defendant has all the information he needs to mount a defense, avoid unfair surprise, and plead double jeopardy,” Wines argued.

Click here to read her brief.

Guilty Plea

In a separate development in this case, a Rhode Island mortgage broker named Nathan Russo pleaded guilty before Judge Thompson Thursday on one count of conspiracy to commit wire fraud.

“Russo admitted that he acted as a mortgage broker for five residential property sales that closed in between April and September 2007. All but
one of these properties were in Connecticut,” according to a press release issued by the U.S. Attorney’s office. ​“Russo prepared loan packages for these transactions, including loan applications for the buyer, which he knew to include false information about the buyer’s employment, assets and liabilities and the buyer’s intention to occupy the property as his principal residence. The loan applications also were supported by false documentation, including earning statements and fraudulent bank records.”

He faces up to five years in jail and $250,000 in fines at his scheduled April 4 sentencing.