Epic Fraudster

Solomon Dwek (pic) is labeled an "epic fraudster" in a Joe Ryan article about corruption for the Star-Ledger.  Dwek, a former rabbinical student, was the tool of the FBI in its New Jersey corruption sting.  Forty-six public officials, including judges, mayors, and others have been caught up in bribery and other federal offenses. 

Dwek came to the attention of the federal authorities as part of their investigation into a $50 million dollar bank fraud.  In exchange for consideration he strapped a small camera around his waist and set up the various persons now on trial in various venues around Jersey. 

Dwek will go down in the annals of legendary crooks for a variety of schemes apart from his sting of others.  It is revealed in testimony at the trial of Ridgefield Mayor Anthony R. Suarez that Dwek arranged to pay the premiums of terminally ill and elderly folks who could not afford life insurance premiums.  When the insured died he and his partners including a Yeshiva (a school) collected the policy.  On cross examination Dwek acknowledged collecting $150,000 from "investing in people's deaths." 

Karma, anyone?

No Lawyer, No-Brainer, You Get a New Trial, Right?

This seems like a no-brainer, you are represented in court by a fake attorney, your 6th amendment rights to counsel have been violated and your conviction should be reversed, right?  Well according to the Denver Post, . . . not necessarily?  Huh?

Gwen Bergman was convicted of a murder for hire and is doing 9 years after being represented by Howard Kieffer, a con man and imposter attorney (see pic.)  Kieffer is about to go on trial for fraud.  The con man tood $70,000 for "reperesenting" Mrs. Bergman.  He apparently had represented a dozen or more folks in federal courts in and about Colorado and North Dakota.  Here's an exceprt from Felisa Cardona's report:  

"A murder-for-hire convict represented in court by a fake attorney lost an appeal to have her conviction and nine-year prison sentence overturned.

But a three-judge panel on the 10th U.S. Circuit Court of Appeals ruled Gwen Bergman's Sixth Amendment right to counsel was violated during an Oct. 23, 2007, hearing when she was found mentally competent to stand trial.  As a remedy, the appellate court sent Bergman's case back to Senior U.S. District Judge Walker D. Miller to conduct an evidentiary hearing and make a 'retrospective' competency determination to find whether he believes she was of sound mind at the time. If Miller finds Bergman was incompetent, he must throw out her conviction and order a new trial. If he finds she was competent, Miller could still order a new trial.  In her appeal, Bergman argued that her sentence was unreasonably long, but the judges indicated if Miller decides not to conduct a new trial, her prison sentence will stand.

Circuit Judge Jerome A. Holmes dissented from the remedy decided upon by circuit judges Bobby R. Baldock and Eugene Edward Siler Jr. in the opinion published March 25.  Holmes wrote that a retrospective competency determination would be nearly impossible to do given that three years have passed since the competency hearing.  'I would vacate Ms. Bergman's convictions and remand the case for a new trial,' he wrote. The impostor attorney, Howard O. Kieffer, advised Bergman to go forward with a trial — a move that contradicted what prior defense lawyers advised her to do.  Bergman, who lived in Aspen, was convicted in May 2008 of trying to hire a hit man to kill her son's father."
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You see, this seems like a no-brainer to me, but I'm a bad attorney--so I concede that I don't have the brain power of these high-toned federal appellate jurists.  It seems to me that you get convicted of a crime after being represented in a murder case by a non-lawyer, your Sixth amendment rights have been violated, you get a new trial.  Automatic. End of story.

Falls River Paper Clip Fraud

Former Falls River, Mass dentist Michael Clair has been charged with all sorts of fraud in connection with his biling practices. 

It turns out that when this clown did "root canal's" he was supposed to be using stainless steel surgical posts, and instead was sticking paper clips in patients' mouths while billing for the use of the legitimate surgical devices.  According to the account at the Falls River Herald News,  this practice enabled former dentist Clair to clip Medicaid to the tune of $130,000. 

Nice.

No, Insurance Companies Don't Commit Fraud Do They?

When you throw around the word, fraud, you should be very careful.  Fraud or fraudulent at law is different than saying so-and-so is a fraud, or "that's fraudulent."  If you can easily see that something is fraud, by definition it isn't.  Admittedly, when we think about and talk about fraud we think and talk about precisely the same thing, something phony.

For something phony to be legal fraud there must be:  a material misrepresentation by words or conduct through active holding out or through concealment (of something that should have been revealed), which deceives and is intended to deceive another so that they reasonably rely and act upon the misrepresentation to their legal detriment.  My experience is that when clients have sought my assistance in redressing "fraud" the laying out of the elements has usually deterred further action.  The carnival midway is not a place where fraud is found, . . . fools, but not fraud.  Fraud in a generic sense covers all sorts of human sin where one takes advantage of another without rising to the level of "actionable fraud."  The defrauded in general are usually co-conspirators in their own injury, via the full panoply of psychic impulse including envy, denial, gluttony, pride, you get the picture.  Fraud is an alibi, an excuse when we get burned again.

My Cleveland friend, Patrick Perotti, has created a lucrative law practice out of bringing actions against insurance companies, title companies, banks, and businesses who engage in the real deal.  Real fraud happens all the time and it is often intended to surreptitiously scam nickels on top of legitimate profit margins or genuine cost.  Let me give you an example, Grange Mutual Insurance Company (yes, we name names when it suits us) charged a legitimate premium for a certain type of coverage under family auto insurance policies that they offered; but some bright executive at the company decided that the amount they collecting could be double, triple, and more than the law allowed. While the amounts involved were minuscule per family the net effect was millions and millions of dollars for Grange's bottom line without incurring any commensurate risk.  Patrick Perotti figured out how this scam worked and  brought a lawsuit.   After a two day trial a jury near Cleveland awarded $48 million in compensatory damages.  Punitive damages were pending submission to the same jury when Grange agreed to pay $51 million in settlement.

Mercury Insurance of Illinois just got hit by a demand for punitive damages for courthouse fraud.  According to the news account Steven Thomas Kirk was struck by a truck driven by  Mercury's "insured," Enver Hamiti. Kirk.  Hamiti fled the scene, even though " [Kirk's] leg was detached by the accident." Get this gothic detail, somebody walks by and steals a diamond stud earring from Kirk's earlobe as he lay inert at the scene. Kirk sued Hamiti in Madison County, seeking damages.  Apparently Kirk had been drinking, but Kirk's use of alcohol did not play a role in the accident, the jury found Mercury's insured Hamiti fully responsible for causing the accident awarding $1.37 million to Kirk.  


Attorney Chris Kolker is asking the Court to award an additional $500,000. directly against Mercury Insurance Company because he suspects the Mercury Insurance adjuster, claims people and although it doesn't say so, I suspect the defense attorney invented a eyewitness who at trial testified that Steven Kirk was driving his motorcycle erratically, weaving in and out of traffic.  This testimony was offered and intended by Mercury to be relied upon by the jury to the detriment of Steven Kirk.  The only problem with this eyewitness, she testified to seeing the accident happen from her apartment window--she didn't live in the apartment according to lease documents until six months after the accident.   Hmmmmmmm?  Sure sounds like fraud, or at least attempted fraud.  


Bear with me for a sec, reading between the lines it may be that the fraud claim is about "collecting."  Unless Mr. Hamiti was driving a commercial truck, it'improbable that Hamiti's Mercury Insurance policy carried million dollars worth of insurance.  In fact it's probable that the amount of insurance available to pay the jury verdict awarded to Mr. Kirk is in the tens-of-thousands so the only prayer Mr. Kirk has of collecting against Mercury is if the court imposes a direct sanction for fraud against the insurance company and it's claims people.  Other obstacles make it unlikely that Mr. Kirk and his counsel are going to succeed, including jurisdiction of the court to impose such a sanction.  I've talked about the concept of jurisdiction, before in the purest sense--jurisdiction refers to the power of a court, either geographically defined or over the subject matter of an action.  In the motorcycle-car crash the court's jurisdiction is over the parties, Mr. Stevens and Mr. Hamiti and any company Mr. Hamiti was working for at the time of the accident. It will be a matter of Missouri law whether Mr. Steven's fraud claim against Mercury can be heard as part of the underlying lawsuit.  Typically, Mr. Stevens has no claim against Mercury because he has no contract of insurance with them, his remedy is to sue Mr. Hamiti which he did.  Mercury's liability to Mr. Stevens is only for the amount of coverage purchased by Mr. Hamiti.  If Mercury only covered Mr. Hamiti to the tune of $12,500 which is not unheard of--that's all Stevens and his attorney will collect from Mercury.  The balance of the $1.37 million verdict comes out of Mr. Hamiti's pocket, if Mr. Hamiti is like most folks, Mr. Stevens is out of luck.  


Good luck on that fraud claim.  For more:


http://columbus.bizjournals.com/columbus/stories/2007/09/03/daily12.html


http://www.bnd.com/372/story/1028154.html