Another Morgan case, another controversy over cellphones [The Buffalo News, N.Y.]

October 4 – There is another cell phone controversy in the criminal case involving Rochester developer Robert C. Morgan.

For the second time in two separate federal fraud cases, Morgan’s lawyers are once again crying out loud over prosecutors handling a personal cell phone linked to one of the defendants and the evidence it contains.

This time, the phone in question belongs to the girlfriend of one of the defendants, Buffalo mortgage broker Frank Giacobbe. And again, it’s being used to argue for prosecutors’ bad behavior, as the defense now wants the whole case to be dismissed permanently – before everything is heard on the merits.

Morgan, his son, his CFO and Giacobbe are accused of orchestrating a massive mortgage and insurance fraud scheme in which they forged documents to deceive lenders, as well as government-sponsored entities. Fannie Mae and Freddie mac. Prosecutors say the defendants conspired to provide fake rent rolls, financial reports, appraisals and other information to trick banks into lending more on apartments than they were worth.

In March 2021, prosecutors filed a new indictment of 104 counts against Morgan and his son Todd, as well as Giacobbe and Michel Tremiti, after the initial complaint against them was dismissed in a manner that allowed new charges to be laid.

The latest charges are similar to the first go-around, accusing the four of conspiracy with Kevin morgan, Patrick Ogiony, Scott cresswell and others “to fraudulently obtain funds from financial institutions“, by submitting inflated and bogus rental listings, with non-existent tenants and increased rents to bolster a property’s income.

Defendants reportedly told lenders they were receiving incidental charges, such as cable service, and also “reduced and unduly capitalized expenses to make the property look like more revenue” to “justify a mortgage. more important than that to which they would otherwise be entitled., according to the announcement of the United States Attorney’s Office. And they would have sought to cover up the fraud by revealing occupied units during inspections.

Since March, the case has gone through the typical “discovery” process, including technical issues related to the massive data dump of 5.6 million documents provided to defense attorneys in June.

But now Morgan’s attorneys are asking the federal judge to deal with the case, Elizabeth a wolford, to reconsider his previous “dismissal without prejudice”. They argued that the government has once again misrepresented its disclosures.

This is a new government disclosure that he has material from a cell phone owned by Julia besant – Giacobbe’s girlfriend – which he has had in his possession ever since February 2018, when he seized the phone under a court-ordered search warrant that specifically mentioned Morgan by name.

Defense attorneys said prosecutors had never previously disclosed the existence of the cell phone or the affidavit filed in support of that original warrant. Both should have been disclosed in the first criminal case, they said. And they concluded that the failure to do so and the government’s “flagrant misrepresentation in court” reflect the earlier problems of prosecutors which led to the dismissal of the original case.

The government, for its part, says it never saw Besant’s cell phone as part of the evidence it needed to disclose, and it now does so only as an added caution to ensure it complies with fully the requirements. Hence the 5.6 million documents that were disclosed this time, an increase of 50% compared to the 3.8 million files provided to defendants the last time.

Last time, in the first lawsuit against Morgan that began three years ago, Morgan and his lawyers demanded the return of the developer’s phone, claiming prosecutors had possessed it since the FBI raided the offices of the developer. Morgan at May 2018, but had done nothing with it. And they claimed that Morgan’s privacy and property interests in the phone outweighed prosecutors’ needs.

Prosecutors said they tried but couldn’t access the cell phone – despite three forensic labs and two software programs – because Morgan was using a six-digit passcode and security features additional, and would not cooperate with the government in allowing them access. So they had to test two to three randomly generated codes every hour for 19 months. It was late 2019 and early 2020.

In October 2020Wolford dismissed the entire indictment of 114 counts against Morgan and three co-defendants because prosecutors had acted too slowly in producing and providing evidence to the defense as required. Agreeing with repeated defense complaints, she said prosecutors mismanaged the discovery process and exceeded court deadlines, violating Morgan’s right to a speedy trial.

But she determined that the government’s “lax approach” was not intentional or willful, so she dismissed the case “without prejudice”, allowing the prosecution to re-file its indictment. She also noted the seriousness of the charges and significant potential penalties if the case is proven, saying that outweighs any harm to defendants caused by the delays.


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