Take the Money and Run
The three-story Victorian house in the Humboldt Street Historic District looks like something out of a fairy tale: Balconies jut out from its upper floors, a turret flanks one side of the century-old red-brick mansion, and the surrounding grounds are fortified by a wrought-iron gate. For a short time in the early 1980s, it was Jay Schlaks's castle. And he lived a life befitting a man of such means. The inside was adorned with fine art and expensive carpets, and when Schlaks pulled out of the courtyard behind his home, he did so in a top-of-the-line Jaguar.
While the recession of the 1980s forced many people in Denver to default on home loans and move out of state in search of work, Schlaks was living the good life. But his lavish lifestyle wasn't made possible by the oil boom of the 1970s or by mining, cattle ranching or any other traditional method of making a fortune in the West. No, his ability to buy and renovate this grand old house near Cheesman Park -- and three others that share a common courtyard -- was made possible by one of the oldest professions in the book: Con artistry. It was a trade that Schlaks had down to a science.
Schlaks, though, didn't seek out his victims like a gigolo in search of a wealthy widow. His victims came to him, wooed by newspaper ads for "insured and secured" land investments in Colorado and New Mexico that promised an annual return of between 13 and 16 percent. The mostly middle-aged and elderly couples and individuals who flocked to Schlaks's posh office at 1801 Broadway were greeted by well-dressed, professional-sounding "account executives" who presented all documents on thick-stock paper with the name of Schlaks's company -- First Territorial Mortgage -- embossed in gold. The investors were never shown any photographs of the land, nor were they presented with any architectural plans for the proposed residential development. They simply bought into the charm of the people representing First Territorial Mortgage. Unfortunately, charm was all they had to offer.
The company, in theory, acted as a middleman. It would collect the cash from investors -- a minimum of $5,000 for a minimum period of six months -- to fund the ventures of property-development companies and then see to it that the investors received monthly interest payments. Investors were also promised that if the developers defaulted, ownership of the property, in the form of a deed, would revert back to them. If the developments were successful, however, the investors would reap handsome rewards.
The account executives even produced slick brochures assuring investors that their money would be insured. "All documentation is prepared in accordance with well established banking and insurance standards," it read.
Had the investors actually traveled to New Mexico to see the land in which they were investing, they would have discovered that it hadn't been subdivided and that it had no roads, no water and no utilities. Most important, they would have learned that the land consisted of steep mountainsides habitable only by goats and that there were no "developers."
David, a 76-year-old resident of southern Colorado, wishes he'd done more homework before investing in First Territorial Mortgage. When he had the misfortune to come across Schlaks's ad back in 1983, he was feeling the brunt of Colorado's economic bust. In fact, he was perusing the Denver Post classifieds in search of a job when he saw the ad and its promise of a guaranteed investment with an annual return of 14 percent "paid monthly." To a man in a desperate situation, taking desperate measures to earn money came naturally.
"I was taking any kind of work I could after a long and spotty career in higher education," says David, who was living on the Western Slope at the time. "I did just about everything I could find to do. I even took a job selling hearing aids on a commission basis. At one point, I delivered newspapers just to get by." By the time he answered the ad, David, who asked that his last name not be used to protect the privacy of his family, was working as a counselor in a developmental-disabilities program and was making what he calls a "semi-salary."
"I was in a position of vulnerability," says David, who lost $7,000. "I look at it that way -- not out of any personal remorse, but to understand the dynamics of how I got taken. I felt like I needed to get out on top, and I was more hasty than I should have been. I was looking for an exceptional deal. The old adage 'If it looks too good to be true, then it probably is' applies here. Our investment was a relatively insignificant amount by today's standards. But the meager amount we had to invest all went into First Territorial Mortgage."
David talked to a trusted acquaintance with what was then Colorado National Bank; that person had no negative information on First Territorial Mortgage. Likewise, no complaints about the company had been registered with the Better Business Bureau. "After having satisfied ourselves that our investment was solvent, I talked twice on the phone with one of the account executives and once with Mr. Schlaks."
David didn't visit the plush office that helped put some investors at ease until a few months later, when he went to find out why his interest payments had stopped. "These guys were good. They didn't come across as hesitant in what they were saying; they came across as clearly in charge of their financial world. There was no question about the solidity of their investment; they said you just can't lose by investing in real property. That was our security -- the land was there, and it was never going to go away. There was no specific word or phrase that they said; it was the overall impression they left on me. It was the difference between talking to some young acolyte in a church proceeding who is learning the ritual versus talking to the Pope. I felt like I was talking to the Pope. They had every angle covered."
And yet David never asked to see any pictures of the land or any drawings of the proposed development. "I guess people would say, 'What do you expect? You're handing these people money and not getting anything in return.' I have no good comeback for that now. But at the time, it all seemed so compellingly clear."
Georgiann McSwigan, an 85-year-old Denver woman, invested $22,000 around the same time. She never met Schlaks; she only dealt with one of his account executives -- a man she is convinced knew nothing of the fraud he was helping to commit. The young man, she says, was very nice, and so was the office. There were easy chairs in the reception area and leather chairs and other beautiful furnishings in the inner office. "It would convince anyone," she says. "What we didn't know was that our money was financing it."
Fortunately, she wasn't financially ruined by the loss. "I had other sources of income, but others did not," she says. "It was a pathetic thing. He took money from people who had to go on relief."
It may never be known exactly how many people fell prey to the scam, but according to court documents, at least 250 people were tricked into satisfying Schlaks's champagne tastes. First Territorial Mortgage managed to squeeze at least $3.2 million from these people between January and August of 1983.
Schlaks kept the front going by operating a classic Ponzi scheme: He used money from one investor to pay off the interest due to another. There never were any companies that had planned to develop the land in New Mexico. And none of the investors ever could have held a deed to the land, since it was owned by a bank in New Mexico that had loaned Schlaks the money to buy the property. So even if the plan had been legitimate and the development companies went bust, ownership of the land would have reverted back to the bank, not to the investors.
Schlaks also used the investors' money to pay the mortgage on his four Cheesman Park homes, telling them he planned to refurbish and resell them at a profit. What he failed to say was that he was living in one of them.
While Schlaks was cheating investors, a top official with the Colorado Division of Securities was on to him. But it would take a fifteen-year legal roller-coaster ride before Schlaks would pay for his crimes.
As a former securities investigator for the State of Wisconsin, Phil Feigin knew all about the gimmicks con men use to hook their victims. So in November 1982, when he picked up the newspaper at his first day on the job as Colorado's deputy securities commissioner and saw the ad for First Territorial Mortgage, he figured it had to be a hoax. No investment is ever secure, as the ad promised, and the 14 percent return it guaranteed sounded overly optimistic.
Feigin called First Territorial Mortgage and asked what the company was up to. The firm's in-house attorney, William Kraemer, told him the company had moved to Colorado from Taos and was in the business of selling deeds on residential property. He insisted that all operations were aboveboard. But Feigin wasn't convinced, and he became even more suspicious when he discovered that Kraemer wasn't even licensed to practice law in Colorado. "To this day, I am amazed at how flagrant were their representations," he says. "The only thing that turned out to be true was that they were from Taos."
Thus began the investigation into First Territorial Mortgage.
In the early '80s, the state securities division was operating on a shoestring budget. In addition, the state attorney general's office -- which represents state regulatory agencies such as the securities division and prosecutes tax-evasion and Medicaid fraud cases -- was stretched thin and didn't have the special securities-fraud unit they do now. "We used whatever time they could spare for a securities case," Feigin says.
His first goal was to stop Schlaks from attracting more investors. But to do that, he had to be crafty. Feigin told Schlaks that since First Territorial Mortgage qualified as a brokerage firm, the company would be shut down if it didn't obtain a brokerage license within a certain period of time.
"It was a ruse. We knew they wouldn't get a brokerage license. It was a way to set a finite date so they'd cease operations," Feigin says. "When they applied for the license, it gave us the opportunity to ask questions they otherwise wouldn't have answered. It was a way of leveraging more information."
The securities division issued subpoenas to the banks in which Schlaks deposited his earnings and uncovered a complicated paper trail that wound through forty separate bank accounts -- 32 in Colorado and eight in New Mexico. "Most businesses that are legitimate don't need forty separate bank accounts," says Victor Reichman, a senior assistant attorney general who got involved with the case much later. "When you have this number, you do it to hide the money."
Feigin filed an injunction in August 1983 to stop Schlaks's operation. On October 18 -- the very day the judge was supposed to hear the case -- Schlaks and company filed for bankruptcy. "Under traditional legal procedures, when someone files for Chapter 11 protection, all other cases [against them] are frozen," says Feigin. "We feared they [filed for bankruptcy] in an effort to stop our injunctive action from going forward."
He was right. After three days of testimony, a bankruptcy judge ruled that the injunctive action had to stop.
It was around this time that investors like David realized they'd been duped. For a few months, everything had been going as planned, and David was getting his monthly interest payments. But then three months went by with no payments -- and no word from First Territorial Mortgage. David and his wife called the company, only to find that its phone had been disconnected.
"We got in our old beat-up Dodge and drove over to the building and found out the thing was a scam," David says. "Someone in the building where Mr. Schlaks leased his space said First Territorial Mortgage was defunct. We found out that the company had filed for bankruptcy. Someone took our number and address, and our name got onto the list of people who had been injured by this company. After that, we started receiving notices of informational meetings, and we attended those. We were one of a number of large investors who had been hoodwinked, but it was small potatoes compared to the others. We just wrote it off as a loss and figured we'd paid for a pretty intense lesson.
"The sad side of this whole scenario," David continues, "is that time passes as the wheels of justice grind. Even though they grind because of the energy of caring and competent people, still, it takes time. People's lives go on and sometimes end. I remember one man who was aged and frail. During one of those explanatory meetings, he recounted to a group of about sixty people -- each of whom was involved or who had a family member involved -- that he'd lost $200,000, and that that was what he had to live on for the rest of his life. That kind of thing leaves you with a sick feeling in your stomach. At the time, our loss was a pretty severe jolt, but really, it was a minor bump on the road back to financial stability. For a lot of people, though, it was the end of a long career of financial stability, and it happened at a point in people's lives when their ability to recover their loss was nil."
Some victims had invested the minimum $5,000, but others, like a couple from Arvada, lost $100,000; a man from Pueblo lost $80,000; a 63-year-old man from Louisville lost $62,000, and a 54-year-old Denver man invested $25,000.
The bankruptcy court eventually reversed its decision and allowed the injunction to go forward. The judge appointed a trustee for Schlaks's estate, and his assets, including the Cheesman Park homes, were liquidated. Ownership of the land in New Mexico reverted back to the bank from which Schlaks took out the loan.
On December 20, 1984, the Colorado Attorney General's Office filed People v. Jay Schlaks and set about prosecuting him on 29 criminal counts ranging from theft to fraudulent and prohibited practices. Shortly after that, however, Schlaks fled to Florida, where he got into trouble for operating another scam. This time, he was reportedly trying to sell people coins that he claimed were made with gold salvaged during the restoration of the Statue of Liberty (which, incidentally, is cast in bronze). For reasons that are not fully understood by the Colorado prosecutors, Schlaks was never charged in Florida.
For eighteen months, Frank Oldham of the attorney general's office tried to extradite Schlaks back to Colorado to face his criminal trial. Finally, in July 1986, he succeeded. Schlaks was arrested but quickly freed on bond. He waived his right to a preliminary hearing, and the case was turned over to Denver District Court for trial. But on July 14, 1987, the first day Schlaks was to appear in district court to hear the charges against him, he failed to show. Schlaks's girlfriend and co-defendant, Rebecca Romero (who would later become his wife), was also missing.
Schlaks was also scheduled to be in New Mexico, where a Taos jury had found him guilty of fraud in a related case; before coming to Colorado in 1982, Schlaks had applied for credit so he could buy office equipment for another company, First Territorial Mortgage of New Mexico. His reference for the loan was someone named "Becky" at the New Mexico Land Bank. The bank, however, turned out to be a fake set up by Schlaks.
The reason he and his girlfriend couldn't keep their court appointments? Sometime in 1987, they had fled to New Zealand.
It was to be the first time that the Colorado attorney general's office had ever tried to extradite someone from another country -- and it would show.
The first step was to locate as many of the victims as possible and send their affidavits to the U.S. Department of Justice in Washington, D.C., which turned them over to the U.S. State Department, which then sent them to the equivalent agency in New Zealand. For an affidavit to be valid in Colorado, it must be signed on the last page by the witness and by a judge, which is exactly how Oldham, who is now a deputy district attorney in Jefferson County, prepared them. But under New Zealand law, each page of an affidavit must be initialed in blue ink by the witness and labeled as an exhibit, then signed on the last page by both the judge and a clerk.
When the prosecutor in New Zealand -- called a crown solicitor -- saw in 1989 that the exhibit notes were missing, he sent them back to the Colorado attorney general's office to be redone.
After the witnesses were called back in to initial their affidavits and the exhibit notes were affixed to the papers, the bundle -- literally a foot tall, tied with a red ribbon and sealed with a heavy gold stamp -- was sent back through the chain of command in Washington and then on to New Zealand.
In December 1989, when the judge in New Zealand discovered that the bundle had been sent back to the United States without his approval, he dismissed the case without prejudice, leaving the door open for future litigation but slamming it shut for the moment.
But Oldham left the attorney general's office in early 1990, and later that year, the office itself had to relocate because its seventh-floor space at 1525 Sherman Street was laden with asbestos. During a temporary move to the Petroleum Building, at 110 16th Street, some of the boxes that contained the actual checks and original statements from Schlaks's accounts were inadvertently thrown out. "There are 175 lawyers in the attorney general's office, and the case was six years old at that point. No one was paying attention to it," says senior assistant attorney general Reichman.
Since banks often only keep records for a maximum of seven years, most of their copies also had been destroyed. (Schlaks's financial trail would have to be pieced back together several years later.)
At the time, Reichman was district attorney for the City of Durango; he wouldn't learn about any of this until December 1992, when he started his new job at the state attorney general's office. "I am painfully anal, and when I was given the office and file drawers and I saw this bundle of papers, I said 'What's this?'" he remembers. "Turns out it's an extradition case, and I have to reinvent all of this and make contacts in Washington. I had never done an international extradition case, and I soon realized how overwhelming it was. And the only one there to work on it was me, me, me. It had a lot of dust on it, but it wasn't going to go away. Phil Feigin was impassioned about it. He was always reminding me to do something about it and reminding me that Jay was still out there."
Reichman spent his spare time over the next three years trying to understand securities fraud and familiarizing himself with the case. Then, in the fall of 1995, he got a call from an FBI agent bearing bad news. Schlaks and his wife had applied to be residents in New Zealand. Before the country grants residency, however, it contacts the courts in the immigrant's country of origin "to see if they're a Ted Bundy or a Mother Teresa," Reichman says. New Zealand officials found that there were federal "unlawful flight to avoid prosecution" warrants out for the Schlakses. But before the warrants could be enforced, the FBI needed to obtain the warrants in the state from which the fugitives had fled. The FBI agent could not find the warrants in Colorado, even though a Colorado judge had issued them years before.
Reichman found that, in fact, the warrants had been quashed two years earlier during a routine housecleaning. Every year, judges in Denver District Court hold a "docket day," in which old cases are reviewed to determine whether they should remain active. Since more than 90 percent of the state's criminal cases go through the district attorney's office, the judge who came across the nine-year-old file in 1993 must have assumed it was one of those, Reichman guesses. And when no one from the DA's office responded to the judge's inquiry, it must have been dismissed, and whatever arrest warrants were associated with it disappeared as well.
"We're not trying to blame anyone," Reichman says. "That's just what we think happened. All we know is that the case never made it back here, and so it was dismissed."
So Reichman had to resurrect the case and reissue the arrest warrants for Jay and Rebecca Schlaks. And doing that, he says, was "not just a walk over to district court."
By 1996, Reichman was so overloaded with work that he could no longer spend time on the Schlaks case, and it was turned over to James Lewis, who was reassigned from his role as a prosecutor of anti-trust cases to the securities-fraud unit. The extradition of Jay Schlaks became his sole mission.
Lewis started by locating as many surviving victims as he could -- many had moved away or were very old and sick or simply wanted to forget the entire thing. "We literally brought people in from nursing homes," Lewis says. Fourteen victims died between the time he started the case and the time he put it to bed. The remaining eight are still scattered across Colorado.
As for those who didn't want to get involved, Reichman says, "Here some jerk from the attorney general's office calls years later, and they're like, 'Oh, goody, why don't you remind me of how stupid I was.' A lot of them just told us to go away."
After Lewis had collected affidavits from those who were willing and able, he sent the paperwork off to New Zealand; an extradition hearing was scheduled for May 1998. But Schlaks's attorney filed several motions to dismiss the case, including one in which he argued that the wrong person had filled out the New Zealand arrest warrant for Schlaks. Lewis had to fly to Auckland to fight these motions. He was successful, and a trial was set for September 1998.
By then, however, New Zealand authorities were already well aware of Schlaks. According to Lewis, Schlaks was operating a business in an office he rented from the Bank of New Zealand. When he asked for permission -- and money -- to add space so he could expand the business, the bank consented. Sometime later, Schlaks approached the bank again, requesting more space. Again the bank agreed. But this time, Schlaks and his contractor agreed to bill the landlord for more work than was done and split the difference -- only Schlaks didn't split the difference with the contractor, according to the attorneys. The contractor wasn't going to let Schlaks get away with stiffing him, so he told the bank what had happened, and the bank filed a criminal suit against Schlaks. He was found guilty and sentenced to nine months in prison in the summer of 1998, but his sentence was suspended on the condition that he commit no other offenses for a year.
When it was time for Lewis to return to Auckland in September for the extradition trial, the first thing he and his New Zealand colleagues had to do was to explain why the case was still viable. It was, after all, fourteen years old, and it had been dismissed once already. The judge wanted to know why the Colorado Attorney General's Office hadn't appealed the earlier dismissal, but since there was no precedent in Colorado for reinstating a case without first appealing its dismissal, "we had to get creative," Lewis says. "Our argument was that the judge mistakenly dismissed the case [during the docket review] because notice wasn't given to the right prosecutor and that because of that, we didn't have an opportunity to be heard."
Finally, Lewis and the crown solicitors found a New Zealand case that had an identical twist: a criminal case that had been dismissed after notice was delivered to the wrong office had been allowed to move forward.
On October 8, 1998, the judge ruled that Lewis had proven his case for extradition. Schlaks was then jailed until January 1999, when a U.S. marshal and two Denver County sheriff's officers arrived to escort him back to Denver.
Before prosecutors were able to put Schlaks behind bars, though, they had to cross another hurdle: In October 1999, his attorney, Darren Cantor, tried to have the case dismissed on the grounds that the attorney general's office had lost evidence and had taken so much time prosecuting the case. "The government usually doesn't screw up this much. They usually don't lose evidence, and they usually don't cheat this explicitly," he says.
Cantor relied on a Colorado law that states that when one side destroys or doesn't produce evidence that is helpful to the other, the case can be dismissed. Although Lewis argued that the only side injured by the absence of the original bank records was the prosecution, Cantor countered that "because they'd been thrown out, I couldn't hire an accountant to look at those records to even say if they were helpful or not."
Cantor also questioned why the attorney general's office didn't try to extradite Schlaks a second time until eight years after the original attempt failed because of a mere technical error surrounding the affidavits. "They have their excuses, like someone left the office, but you know what? I don't buy that. If this case was so important, why did they wait so long? Jay was going by the same name, and he was living in the same country, at the same address; it's not like he was in hiding."
In the end, the judge denied Cantor's motions to dismiss the case. "That was a real hurdle," says Reichman. "It was very significant. We breathed a huge sigh of relief."
Schlaks's Colorado trial was set for January 31, 2000. But rather than go before a jury, he chose to plead guilty to one count of theft and one count of securities fraud. The other six counts were dismissed as part of the plea agreement. Of the original 29 counts, several had to be dropped because of a treaty between the United States and New Zealand in which New Zealand will grant extradition only if the crimes someone is charged with in the United States are also considered crimes in New Zealand (for instance, selling securities without a license); several more were dropped because the deaths of some of the older witnesses left the attorney general's office unable to prosecute.
Very little is known about Schlaks -- neither Cantor nor the prosecutors know where he's from or whether he's ever had a legitimate career -- and he declined to talk to Westword. But court documents show that he used $848,601 of investor funds to buy such things as cars, jewelry, art, furniture, clothes (including an $8,000 layette for his newborn son), appliances, firearms, an ostrich-skin briefcase and precious metals and coins, as well as for travel expenses. The rest of the money went for office expenses, real estate purchases, the salaries of his associates and interest payments to investors. More than $200,000 was deposited in out-of-state banks or converted to cash.
On December 17, 1999, Schlaks was sentenced to four years in jail on the theft count -- which was reduced to 34 months because he had already served a total of fourteen months during his jail stays in New Zealand and Denver -- and twelve years of probation on the securities-fraud count. In addition, he was ordered to pay $306,000 in restitution -- the total amount his eight remaining victims had invested in First Territorial Mortgage.
Some of the other players in Schlaks's charade have paid for their roles as well. William Kraemer, the lawyer for First Territorial Mortgage, was found guilty of securities fraud in 1986. He received four years' probation and was ordered to pay $20,000 in restitution. The New Mexico resident has since completed his probation and paid his dues.
Two other co-defendants received deferred sentences as part of a plea bargain; they both successfully completed the terms of the plea agreements, and the cases against them have been dismissed. One of the company's account executives was not charged in return for his cooperation in the prosecution of Schlaks. Several other account executives are long gone -- "We've searched all over the continent for them," explains Reichman -- but it doesn't trouble the prosecutors too much. They were just pawns, they say; it was Schlaks who orchestrated everything. "These people will never qualify for choirboy, but they're not Jay Schlaks," Reichman says.
Schlaks celebrated his 54th birthday last week at Camp George West, a minimum-security prison in Golden, but he didn't get a visit from his wife, Rebecca, or his two children. They are still more than 7,300 miles away in New Zealand, stuck in cross-continental limbo. Rebecca Schlaks can't become a New Zealand resident because of the outstanding warrant for her arrest in the United States, but she can't return here for the same reason -- and since her passport has expired, she can't go anywhere else. "She's a woman without a country," Reichman says. Which is fine with him. "We'll leave the warrant for her in place. But are we going to go through this brain damage again? No."
McSwigan, the woman who lost $22,000, doesn't blame the attorney general's office for the delays. "As long as [Schlaks] behaved in New Zealand, they couldn't do much," she says. "But once he got in trouble there, New Zealand was happy to be rid of him. I think the attorney general's office handled it as well as they could."
David, the man who lost $7,000, hopes some of the people who lost far more than he will take comfort in knowing Schlaks is paying for his crimes. "It was the persistence of people like Mr. Lewis that brought Mr. Schlaks to justice," says David, who saw Schlaks for the first time when he attended his sentencing in December. "The outcome could have been completely different had it not been for the ingenuity and persistence of these people."
Lewis and Reichman hope they never have to handle another extradition case, and they admit they were ill-equipped to handle this one. Since Colorado is a landlocked state, it's rare for fugitives to flee to other countries from here, they say. While the scam itself was plain vanilla compared to some fraud cases the two have tried, its prosecution had more twists and turns than any they'd ever encountered.
"It involved legal issues I'd never seen before," Reichman says. "Witnesses were dying. This stuff just doesn't happen. And then there was the New Zealand case that was right on par with ours. The whole thing was just bizarre. I started prosecuting cases in 1975, and I've never seen anything like it. Phil Feigin really deserves credit for keeping it going. He had this attitude that he wouldn't let this kind of thing happen in Colorado."
Feigin, who eventually spent ten years in the security division's top post before moving briefly to Washington, D.C., to direct the National Association of State Securities Regulators, now works in Denver as special counsel for the law firm of Rothgerber, Johnson and Lyons. While he was still on the case, however, he managed to convince the state legislature to add the securities-fraud unit -- for which Reichman and Lewis both work -- to the attorney general's criminal-justice section. The case helped legislators understand the need for a bigger commitment toward punishing securities fraud, and it also contributed to getting stiffer penalties for fraudulent criminals. Securities fraud used to be a class-five felony with a maximum sentence of five years; now it's a class-three felony, which can bring much longer sentences.
Now that he knows Schlaks is serving time, Feigin feels proud that justice -- albeit an overdue justice -- was finally served. "It struck me as incredibly wrong for someone to be able to rip off 250 innocent victims and spend the money in such a profligate way. I thought it was important to send the message that Colorado is a bad place to commit securities fraud and that you can't just do these things and then skip town."
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