People v. Abrams
| Decision Date | 22 December 2015 |
| Docket Number | No. 1–13–3746.,1–13–3746. |
| Citation | 47 N.E.3d 295 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Jerry ABRAMS, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
Matthew R. Bolon and Laurence J. Bolon, both of Bolon Law Offices, Chicago, for appellant.
Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Matthew Connors, and Mary A. Laird, Assistant State's Attorneys, of counsel), for the People.
delivered the judgment of the court, with opinion.
¶ 1 A friendship since childhood turned into a business relationship and then enmity. Defendant Jerry Abrams was convicted of theft of over $1.8 million from the complaining witness, Fred Lev, and sentenced to 12 years in the Illinois Department of Corrections, and ordered to pay $1.8 million in restitution.
¶ 2 Abrams argues that: (i) his sentence of 12–years' imprisonment is excessive and disproportionate; (ii) the trial court should not have quashed his subpoena of bank records he would have introduced as substantive evidence contradicting the State's case and for impeachment of the complaining witness; (3) the trial court made improper comments before the jury that were a material factor in his conviction; and (4) the State failed to prove the charge of theft of over $500,000 beyond a reasonable doubt.
¶ 3 We affirm: (1) the trial court properly considered factors in aggravation and mitigation when it imposed a 12–year sentence of incarceration which was well within the range for a Class 1 felony; (2) the bank records were both irrelevant and cumulative evidence; (3) the trial court's conduct was a proper exercise of discretion; and (4) the State proved beyond a reasonable doubt that Abrams stole over $500,000 from Lev.
¶ 5 Before trial, Abrams subpoenaed his former business partner Fred Lev's financial records from two banks, Bank Financial FSB and Hyde Park Bank. The trial court quashed all records except for 16 pages of loan application documents from the Hyde Park Bank dated June 28, 2013. The parties stipulated to bank records consisting of bank statements and copies of checks from LaSalle Bank/Bank of America (January 2004–June 2010); Hyde Park Bank (March 2009–May 2010); First DuPage Bank/First Midwest Bank (February 2004–February 2009); and Bridgeview Bank (January 2004–March 2010).
¶ 7 After years in the real estate business, in 1997 Lev founded, and was the sole shareholder of, “The Fred Lev Company.” Abrams was his sole employee. At that time the only business assets were leases that Lev managed on behalf of clients. Lev also held a master lease for a building at 64 E. Walton, where he lived. Abrams worked part-time for Lev handling the bookkeeping tasks, including depositing rents and security deposits for the leases into Lev's bank account.
¶ 8 Over the next few years, Lev personally bought several commercial buildings in Chicago's Streeterville neighborhood. The Fred Lev Company did not own any real estate property. Lev also received commissions for transactions he negotiated for clients. Lev estimated that the rent and commission income was $54,000 per month. Each property generated rental income that Abrams deposited in various bank accounts in three different banks. The rent checks were not designated to one particular bank; the accounts were commingled.
¶ 9 In 2001 or 2002, Lev noticed that the cash flow into his bank accounts was low, so he asked Abrams how the incoming money was being spent. Abrams told Lev there was “an abundance of insurance and utility bills and real estate taxes, etc.” Lev trusted Abrams and believed him.
¶ 10 In 2003, Abrams told Lev he obtained his real estate broker's license. Abrams became the managing broker for the company. His new duties included renewing the corporate documents with the Illinois Secretary of State. Abrams gave himself the title of president, or sometimes vice-president, and Lev was a “principle.” Lev did not care what titles they each had.
¶ 11 Abrams' salary was $2,000 per month plus discretionary commissions as determined by Lev. Abrams took an expensive vacation yearly and had three lavish weddings for his daughters during this time. When Lev asked Abrams how he could afford his lifestyle, Abrams replied that he had income from his wife's pension, commission from referrals to a businessperson in Texas, and dividends from stock investments.
¶ 12 In May 2010, while Abrams was out of town, Lev opened a bank statement that had arrived in the office mail. He noticed an unusual check that was recorded in the check register as $2,000 but had been cashed for $2,999.99. Lev discovered other checks that were recorded inaccurately, all written by Abrams. Lev called Abrams and asked for an explanation; Abrams said that he was behind in his mortgage and that he would pay Lev back. Lev then left Abrams a voicemail saying that Lev would be working independently and Abrams should clean out his office. When Lev returned to the office after the weekend, he discovered Abrams had taken a credenza and most of the financial records.
¶ 13 Cathy Zack, a close friend, helped Lev search the empty office in an effort to find any records. The only remaining documents were some bank stubs and one original bank statement. Abrams wrote on the top of the bank statement: “two thousand dollars didn't cut it, no commissions in 22 months.” On the bottom he wrote, “I'm not taking from you,” “I've worked for 13 1/2 or 14 years.” On the side it said
¶ 14 Lev then called his attorney who advised him to call the police.
¶ 15 Lev obtained copies of bank statements and the checks that had been written during the previous six or seven years. Lev hired Karen McAdam, a forensic tax accountant, to organize, analyze, and summarize the statements and cancelled checks from four accounts in three different banks. McAdam relied on bank statements and cancelled checks from the banks. Lev labeled all checks he did not authorize and indicated checks on which his signature was forged. McAdam created a spreadsheet for each bank account with improper checks highlighted in yellow. The summary identified checks in the amount of $850,642.01 from Bridgeview Bank between January 2004 and March 2010; $657,953.40 from an account at First DuPage Bank between March 2005 and February 2009; and $412,360 from a second account at First DuPage Bank from August 2005 through February 2009. The total amount of $1,878,817 was deposited in Abrams' LaSalle bank account, his UBS investment account, or checks were made out to pay his personal expenses.
¶ 16 The parties stipulated that the self-authenticating documents from the Illinois Department of Financial and Professional Regulations indicated that Abrams had no professional licenses in the State of Illinois.
¶ 18 Ronald Abrams, Abrams' nephew and a lawyer with other real estate companies and holdings, rented the entire second floor of a building owned by Lev and in which Lev and Abrams occupied space from 2002 to 2007. Ronald occasionally heard arguments between Lev and Abrams. Lev had a violent temper while Abrams did not. Ronald usually saw his uncle at the office from 9:00 a.m. to 5:00 p.m. or thereabouts.
¶ 19 Defendant testified. He was named president of The Fred Lev Company from 2001 to 2009, and Lev “didn't want the responsibility.” Abrams had no ownership interest in The Fred Lev Company. Abrams handled the administrative duties—collecting rents, paying bills and expenses, keeping the checkbook and ledgers—Lev used the checkbook for personal expenses “as if it was [his] own.” Lev would often ask Abrams to withdraw cash for him from the account.
¶ 20 Abrams had the majority of the contacts for the business. His base salary was $2,000 per month but he and Lev had an agreement by which Abrams was entitled to commissions. Abrams never had a broker's license nor did he hold himself out to be a broker. From 2004 through 2008, however, Abrams listed his occupation as “real estate broker” on his federal income tax returns. He also deducted expenses for continuing education in real estate.
¶ 21 Around 2008, the real estate market declined and Abrams was unable to generate any business from his contacts. Abrams stated Lev was “very volatile” and blamed him. In 2008 and 2009, Abrams wrote checks from The Fred Lev Company to two contractors for remodeling at his home. Abrams endorsed a check made out to himself for $8,900 that was recorded in the check register as payable to Com Ed in the amount of $890.
¶ 22 Around 2010, Lev told Abrams that he was taking too much money so he “stopped.” The total amount of the checks written over the years totaled over $2 million. After subtracting Abrams' salary of $2,000 per month, the amount in question was $1.8 million. Abrams felt he earned the $1.8 million.
¶ 23 The jury found Abrams guilty of theft of property exceeding $500,000. 720 ILCS 5/16–1(a)(2)
(West 2012).
¶ 25 At sentencing, the trial court found in mitigation that Abrams was a “contributing member of society,” a “good provider” for his family, had no prior record, was employed his whole life, had no drugs or gangs in his background, and was 68 years old.
¶ 26 The trial court listed aggravating factors as the “planned” and “extensive” nature of the crime as premeditated and spanning a number of years; Abrams' lack of contrition; the amount of the theft (“almost four times the minimum” amount); the fact that victim was over 60 years old; and the victim impact statement. The trial court went on to characterize Abrams' testimony as “absolutely preposterous,” and then stated “I think perjurious would be an appropriate name for it also.”
¶ 27 The trial court then imposed a sentence of 12 years' imprisonment and restitution of $1.87 million.
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...and no reasonable person would take the view adopted by the trial court. People v. Abrams , 2015 IL App (1st) 133746, ¶ 32, 399 Ill.Dec. 790, 47 N.E.3d 295.¶ 52 Our decision to resentence the defendant was filed on August 28, 2014. There, presented with a mandatory natural life sentence, we......
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