Two weeks ago Richard Zabel, the new criminal chief of the Southern District of New York U.S. Attorney’s office, recused himself from the Bernard Madoff investigation because his father represented an investor accused of being the biggest beneficiary of the $65 billion fraud.
On Sunday, William D. Zabel’s client was found dead at the bottom of his pool at his mansion in Palm Beach, Fla. Investor Jeffry Picower, who was 67, drowned after suffering a massive heart attack, the Florida medical examiner who conducted the autopsy said. Dr. Michael Bell told ABC News he is still awaiting the results of a toxicology report, which is expected to take 10 weeks.
The sudden death of this alleged key figure in the Madoff scheme underscores some potentially thorny management issues for the new U.S. Attorney in Manhattan, Preet Bharara. Bharara named Zabel his criminal chief on Oct. 6, calling the former Akin Gump criminal defense attorney a “legal All-Star.” Zabel also served eight years as an SDNY prosecutor in the 1990s.
Although Bharara’s pick for criminal chief quickly recused himself from all Madoff-related matters, line prosecutors now may have little choice but to attempt to seek information from his father, insofar as attorney-client privilege allows.
That’s because the elder Zabel wasn’t just Picower’s representative in the Madoff matter. An estate attorney and name partner in the New York firm Schulte, Roth & Zabel, William Zabel helped set up and oversee the Picower Foundation, a closely held charity accused in a civil complaint of reporting tens of millions of dollars in fabricated and backdated gains from its Madoff accounts.
The complaint, filed by Irving Picard of Baker & Hostetler, the court-appointed bankruptcy trustee seeking to recover money for the victims, said that Picower “knew, or should have known,” his gains in his Madoff-managed accounts were fraudulent. The Wall Street Journal reported in May that Picower was under criminal investigation by the SDNY in the Madoff scheme.
William Zabel is also listed in Securities and Exchange Commission records as the administrative contact for a Picower business accused in the fraud. And he served alongside Picower and Madoff on the board of the now-defunct Picower Institute for Medical Research, another charity accused in the civil lawsuit of having benefited from the Ponzi scheme.
In an interview before Picower’s death, Zabel told Main Justice he wasn’t aware of any fraud involving his client. “I had no knowledge of any of the allegations until after” the trustee’s complaint was filed, Zabel said.
Picower controlled businesses, trusts and charities that received $7.2 billion from the Madoff Ponzi scheme, according to the bankruptcy trustee’s complaint.
Through William Zabel, Picower issued statements and court filings denying the allegations.
“Rather than recognizing Mr. Picower and the other Defendants as victims of Madoff’s fraud, the Trustee instead casts them as villains in history’s largest Ponzi scheme,” a July court filing by Zabel said. Madoff had “callously betrayed” Picower’s trust, the filing said.
“Nothing could be further from the truth,” the Baker & Hostetler lawyers countered in a Sept. 30 court filing. “Many investors were damaged by the [Madoff] fraud, but Picower was not one of them. Based upon the Trustee’s investigation to date, Picower was instead the biggest beneficiary of Madoff’s scheme.”
“We will pursue the litigation with the same vigor irrespective of Mr. Picower’s passing,” David Sheehan, a Baker & Hostetler attorney working with Picard, said in a statement to the Wall Street Journal on Sunday. Jerry Reisman, an attorney representing about 26 victims, told The Associated Press that Picower’s death means, “We won’t be able to hear from his own words whether he was complicit.”
Rich Zabel did not return a phone call placed two weeks ago seeking comment. A spokeswoman for the SDNY, Rebekah Carmichael, said two weeks ago the office would have no comment. William Zabel is not accused of any wrongdoing, and the elder Zabel said in an interview before Picower’s death that he had no knowledge of any alleged fraud.
‘They’re in a mess’
On Dec. 1, 2008, shortly after Democrat Barack Obama was elected president, Republican-appointee Michael Garcia resigned as the U.S. Attorney in Manhattan. On Dec. 11, Madoff was arrested and charged in a giant Ponzi scheme that collapsed as clients panicked by the financial industry meltdown tried to pull their money out, exposing the $65 billion fraud.
The Madoff case mesmerized the public and came to symbolize, in some part, the idea that rampant greed and fraud on Wall Street had risked plunging the economy into depression.
But for the first nine months of the probe, there was no Senate-confirmed U.S. Attorney in Manhattan to oversee it. (Bharara was confirmed on Aug. 7). And in that time period — during which Madoff pleaded guilty, claiming to have acted alone — the Madoff prosecution seemed, outwardly at least, to be in some disarray.
- The government initially negotiated a bail package, allowing Madoff to remain under house arrest in his luxurious Manhattan apartment. The fact that Madoff wasn’t immediately thrown in the slammer outraged victims.
- Then, Madoff on Christmas Eve mailed $1 million worth of jewelry to his sons in what victim’s lawyers said was evidence he was trying to distribute frozen assets to his family. The revelation sparked more public outrage, and the government went to court to try to revoke Madoff’s bail, but couldn’t convince the Magistrate Judge Richard Ellis he was a flight risk.
- On Aug. 10, Madoff accountant Frank DiPascali pleaded guilty to 10 felony counts, including conspiracy and tax evasion. He’s apparently a cooperating witness now, and prosecutors pushed hard for his release on bail – but U.S. District Judge Richard J. Sullivan refused the government request.
- On Aug. 16, Lucinda Franks in The Daily Beast reported that more indictments, possibly of Madoff family members, were expected soon after Labor Day. But Labor Day passed with no indictments. “They’re in a mess over there. They really don’t know what they’re doing,” Franks quoted an “FBI source” about the SDNY prosecutors.
It’s logical that Zabel’s marching orders included getting a handle on the Madoff investigation and fixing the reported “mess.” But a week later, Zabel recused himself from all matters related to the Madoff investigation.
In Madoff’s orbit
While the SDNY won’t discuss Zabel’s recusal, public records show his father had deep ties to Picower and other charities caught up in the Madoff fraud.
In 1989, William Zabel submitted to the Internal Revenue Service the application for tax exemption for the Picower Foundation. View the document here and here. Then, he served for the next 20 years as a trustee of the Picower Foundation while it allegedly reported phantom gains from the Madoff scheme.
The Picower Foundation board was a friends and family affair. There were usually not more than six trustees reported on the foundation’s tax returns – including both Jeffry Picower and his wife, Barbara, who was president of the foundation.
Zabel is also listed in Securities and Exchange Commission records as an administrative contact for Picower’s main investment vehicle, a company called Decisions Incorporated. The SEC records also list a Picower employee named April Freilich as president of Decisions Incorporated.
And Freilich, according to the bankruptcy trustee, worked closely with Bernard L. Madoff Investment Securities to falsify and back-date trading records that reported phantom gains for Picower. (Freilich was not named as a defendant in the civil suit, possibly suggesting that she is a cooperating witness).
The civil complaint describes Freilich’s participation in one alleged fraud involving Picower Foundation accounts:
On May 18, 2007, Freilich indicated the Foundation needed “$20 mil in gains” for January and February and “want[ed] 18% for year 07 appreciation,” but that she had to check the numbers “with Jeff.” On information and belief, “Jeff” is Defendant Jeffry Picower. Five days later, on May 23, Freilich told BLMIS that the numbers she had provided earlier were wrong, and the Foundation “needs only $12.3 mil [in gains] for” January and February 2007
Accordingly, the Picower Foundation’s May 2007 statement reflected millions of dollars in securities transactions for the months of January and February 2007 that collectively resulted in a purported gain to the account of $12.6 million.
But those transactions had never appeared on the foundation’s January or February 2007 statements, the complaint says. The result was an apparent $54.6 million increase in Picower Foundation assets, to $765.9 million in May 2007 “because the May 2007 statement was (and subsequent statements were) based on an entirely different account history: one in which various trades had taken place more than 15 months earlier, resulting in entirely different positions and values,” the complaint says.
(Click here to see an example of one of the allegedly fradulent “portfolio appraisals” the Picower Foundation filed to the IRS with its tax return).
The complaint adds:
The mysterious appearance of securities transactions months after the purported trades settled … was not credible and would have raised questions by an account holder who was not complicit in the manipulation.
Zabel said in an interview he did not set up Decisions Incorporated. He said he is likely listed in SEC records as the company’s administrative contact because he was Picower’s “personal lawyer.” But he said Picower had other lawyers who handled his corporate matters.
“I am his personal lawyer for his personal matters and foundations matters,” Zabel said, speaking before Picower’s death.
But Zabel, through his work for Picower, was in Madoff’s close orbit. The trustee’s complaint said “Picower has been closely associated with Madoff on both a business and social level for the last 30 years.”
Zabel, Madoff and Picower served together on the board of the Picower Institute for Medical Research, which closed in 2002 after I published this story in the St. Petersburg Times questioning whether money from Picower’s charitable entities had been used to help him gain personal control of a pharmaceutical company. See a copy of the Picower Institute board membership here.
(Zabel said the IRS investigated and cleared the Picower Foundation in the matter.)
‘In Pursuit of Justice’
William Zabel is the trustee and legal advisor for another charity caught up in the Madoff fraud. Last Dec. 15, the JEHT Foundation – a major funder of liberal causes, especially involving reform of the juvenile justice system and human rights — announced it would close its doors. Its founders’ money had been managed by Madoff, and they had lost everything.
The JEHT Foundation was run by Jeanne Levy-Church, whose father – a New York real estate magnate named Norman Levy – had been Madoff’s close friend. Norman Levy died in 2005, and Madoff became the executor of his estate, according to Vanity Fair magazine.
Public records show that after Levy’s death, $217 million from a Levy trust was donated to The Betty and Norman F. Levy Foundation, whose money was managed by Madoff. The Levy Foundation, in turn, donated heavily to the JEHT Foundation, for which Zabel served as a trustee.
The JEHT Foundation is not accused of any fraud. But it – along with the Picower Foundation – made contributions that totaled about 10 percent of the annual budget of an advocacy group called Human Rights First, whose board director is William Zabel.
Human Rights First also published a report last year co-authored by Rich Zabel called “In Pursuit of Justice, Prosecuting Terrorism Cases in the Federal Courts.”
The report, widely cited by news organizations and other non-profit groups, helped burnish Rich Zabel’s national security credentials after a decade in private practice.
In May 2008, Rich Zabel and his co-author held a news conference at the National Press Club in Washington to discuss the report’s findings. And last November, William and Rich Zabel appeared on stage at Human Rights First’s 30th anniversary celebration in New York to discuss the report. The gala dinner was hosted by actress Sigourney Weaver and featured entertainment from country-folk star Mary Chapin Carpenter.