1034-00001 · Graystone & Falk LLP · Government Correspondence

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MEMORANDUM OF TELEPHONE CONFERENCE

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT

FROM: Conrad Ashby, Partner, White Collar & Investigations Practice Group, Calderwood & Harkness LLP

TO: File — Matter No. 1034-00001

CC: Bernard Crawford (Responsible Partner); Daniel Obi (Lead Associate); Lisa Morrow (Working Associate)

DATE: December 12, 2022

RE: Telephone Proffer with Assistant United States Attorney Miriam T. Goldfarb — Grand Jury No. 22-GJ-4481 (U.S. District Court for the Southern District of New York) — In the Matter of the Grand Jury Investigation of Marcus W. Stavros and Aegean Realty Partners LLC

CLIENT: Jonathan R. Caldwell

1. Purpose of Memorandum

This memorandum memorializes a telephone conference held on December 12, 2022, between the undersigned, Conrad Ashby of Calderwood & Harkness LLP, counsel for Jonathan R. Caldwell (subpoena respondent), and Assistant United States Attorney Miriam T. Goldfarb of the Complex Frauds & Cybercrime Unit, United States Attorney's Office for the Southern District of New York, 500 Pearl Street, New York, New York 10007. The purpose of this memorandum is to create a contemporaneous record of the substance of the call for the client file and for reference by the engagement team as the matter proceeds.

The call was initiated by the undersigned in order to discuss the following matters: (a) the current status and scope of the federal grand jury investigation underlying the subpoena duces tecum and ad testificandum served on Mr. Caldwell on November 21, 2022 (the subpoena having been issued on November 18, 2022, returnable to Grand Jury No. 22-GJ-4481, with an original return date of December 9, 2022, subsequently extended to January 20, 2023, pursuant to an email agreement between the undersigned and AUSA Goldfarb dated December 8, 2022); (b) Mr. Caldwell's status in the investigation, including whether the government views him as a target, subject, or witness; and (c) the government's expectations regarding the scope of document production and the timing and nature of any testimony that may be sought from Mr. Caldwell.

Daniel Obi, Lead Associate on this matter, participated on the call in a listening capacity but did not speak during the conference. At the outset of the call, the undersigned confirmed with AUSA Goldfarb that no other representative of the government was on the line. AUSA Goldfarb confirmed that she was the sole government participant. The undersigned disclosed to AUSA Goldfarb that Mr. Obi was listening to the call, and AUSA Goldfarb indicated that she had no objection to his presence.

2. Participants

The following individuals participated in the telephone conference:

Calderwood & Harkness LLP:

• Conrad Ashby — Billing Partner, White Collar & Investigations Practice Group (speaking participant)

• Daniel Obi — Lead Associate, Banking & Finance Practice Group (listening only; did not speak during the call)

United States Attorney's Office, Southern District of New York:

• AUSA Miriam T. Goldfarb — Complex Frauds & Cybercrime Unit (speaking participant)

Call Duration: Approximately thirty-five (35) minutes. The call commenced at approximately 2:15 p.m. Eastern Standard Time and concluded at approximately 2:50 p.m. Eastern Standard Time.

Call Initiated By: Conrad Ashby, via direct dial to AUSA Goldfarb's office line at the United States Attorney's Office, Southern District of New York.

3. Mr. Caldwell's Status in the Investigation

The undersigned opened the substantive portion of the call by asking AUSA Goldfarb to characterize Mr. Caldwell's current status in the grand jury investigation. This inquiry was made consistent with the standard practice of seeking a status proffer from the government at the earliest practicable stage of engagement in connection with a grand jury subpoena, so as to inform the scope and direction of the representation and to assess the nature of any potential exposure to the client.

AUSA Goldfarb stated, informally but clearly, that the government considers Jonathan R. Caldwell to be a witness in the investigation. She stated explicitly that Mr. Caldwell is not a target and not a subject of the grand jury investigation designated Grand Jury No. 22-GJ-4481. AUSA Goldfarb's characterization was unequivocal on this point, and she did not qualify her statement with any hedging language or caveats beyond what is noted below.

AUSA Goldfarb further confirmed that no formal target letter or subject letter has been issued to Mr. Caldwell in connection with this investigation. She stated affirmatively that the government does not presently contemplate issuing any such letter to Mr. Caldwell. The undersigned specifically asked whether there was any ongoing consideration within the office regarding a change in Mr. Caldwell's status, and AUSA Goldfarb responded that there was not, based on the current state of the investigation.

AUSA Goldfarb elaborated on the basis for the government's characterization of Mr. Caldwell as a witness. She stated that the government views Mr. Caldwell as a co-investor with Marcus W. Stavros who may possess documents and information that shed light on Stavros's conduct, particularly with respect to two areas of interest: (a) the representations that Stavros made to investors in connection with the Aegean Realty syndication offerings, including offering memoranda, investor updates, quarterly reports, and informal communications; and (b) the movement of capital between entities controlled or influenced by Stavros, including transfers among fund vehicles and between fund accounts and accounts held by Stavros personally or by entities under his direction.

The undersigned confirmed to AUSA Goldfarb that Mr. Caldwell intends to cooperate fully with the subpoena and with his document production obligations, subject to any applicable privileges and to the terms of the agreed-upon schedule for rolling production. AUSA Goldfarb expressed appreciation for Mr. Caldwell's cooperative posture and indicated that the government's experience to date with Mr. Caldwell's counsel had been professional and constructive.

Note of Counsel (Ashby): While AUSA Goldfarb's characterization of Mr. Caldwell as a witness, and not a target or subject, is reassuring and consistent with our preliminary assessment of the facts, it is important to note that this characterization is an informal oral proffer made during a telephone conference. It does not carry the binding effect of a formal written declination, a grant of immunity (whether statutory immunity under 18 U.S.C. § 6002 or letter immunity), or any other formal agreement between Mr. Caldwell and the government. The United States Attorney's Manual (USAM § 9-11.151) makes clear that a witness's status may change as an investigation develops and that informal representations regarding status do not constrain the government's discretion. Mr. Caldwell's witness status should be monitored continuously as the investigation evolves, and the engagement team should reassess at each stage of the document production process and, critically, in the event testimony is ultimately requested by the government. Any material change in the government's posture toward Mr. Caldwell, or any development in the investigation that could alter Mr. Caldwell's exposure profile, should trigger an immediate reassessment of strategy, including consideration of whether to seek a more formal assurance of non-prosecution before producing additional documents or making the client available for testimony.

4. Summary of the Government's Description of the Investigation

AUSA Goldfarb provided the following information regarding the nature and scope of the grand jury investigation. The undersigned notes that AUSA Goldfarb was careful to describe the government's understanding in general terms and did not disclose grand jury materials, the identities of cooperating witnesses, or the specific evidence that has been presented to the grand jury. The information set forth below reflects the undersigned's best recollection of AUSA Goldfarb's statements during the call.

4.1 Target of the Investigation

AUSA Goldfarb identified Marcus W. Stavros as the apparent and primary target of the grand jury investigation. AUSA Goldfarb described Stavros as the founder, principal, and controlling person of Aegean Realty Partners LLC, a Connecticut limited liability company formed on March 12, 2014, with its principal offices at 280 Atlantic Street, Suite 510, Stamford, Connecticut 06901. According to AUSA Goldfarb, Aegean Realty Partners served as the general partner or managing member of multiple real estate syndication fund vehicles through which capital was raised from investors and deployed into commercial and residential real estate properties, primarily in the New York metropolitan area and southern Connecticut.

AUSA Goldfarb specifically identified the following fund vehicles as being within the scope of the investigation: Aegean Realty Fund III LP, Aegean Realty Fund IV LP, and Aegean Realty Fund V LP, each of which is organized as a Delaware limited partnership with Aegean Realty Partners LLC (or a subsidiary thereof) serving as general partner. AUSA Goldfarb indicated that additional fund vehicles are also part of the investigation but did not enumerate them by name during the call. Based on other information provided by AUSA Goldfarb (described below), it appears that the government is examining at least seven syndication offerings made by Aegean Realty between 2016 and 2021.

AUSA Goldfarb confirmed that Stavros is represented by separate counsel in connection with this investigation. She identified Stavros's counsel as Victor A. Reddick of the firm Reddick, Sorrento & Hale LLP, with offices at 1 Liberty Plaza, 37th Floor, New York, New York 10006. The undersigned has no prior professional relationship with Mr. Reddick or his firm, and no conflict of interest has been identified. AUSA Goldfarb did not describe the nature or extent of any communications between the government and Stavros's counsel, and the undersigned did not inquire.

4.2 Suspected Criminal Offenses

AUSA Goldfarb described the investigation as focusing on potential violations of the following federal criminal statutes:

• Wire fraud — 18 U.S.C. § 1343, relating to the use of interstate wire communications to further a scheme to defraud investors and lenders;

• Bank fraud — 18 U.S.C. § 1344, relating to the knowing execution or attempted execution of a scheme to defraud federally insured financial institutions, principally Westlake Fidelity Bank, N.A.;

• Money laundering — 18 U.S.C. § 1956, relating to financial transactions involving the proceeds of specified unlawful activity, including the alleged diversion and commingling of investor capital described below; and

• Conspiracy — 18 U.S.C. § 371, relating to a conspiracy to commit one or more of the foregoing offenses.

AUSA Goldfarb stated that the investigation is believed to have commenced in early 2022, though she did not provide a precise start date or describe the specific event or referral that triggered the investigation. The undersigned did not press for this information during the call, as it was not directly relevant to the scope of the representation of Mr. Caldwell at this stage. AUSA Goldfarb did not identify any additional targets or unindicted co-conspirators by name, other than Stavros, during the call.

4.3 Nature of the Alleged Scheme

AUSA Goldfarb described the government's understanding of the alleged scheme in general terms. She was careful to note that she was not disclosing grand jury materials or detailed evidence and that her description was intended to provide counsel for Mr. Caldwell with sufficient context to understand the government's interest in documents from Mr. Caldwell's files. The alleged scheme, as described by AUSA Goldfarb, consists of the following principal components:

Inflated Appraisals. Stavros is alleged to have obtained, or caused to be obtained, inflated real estate appraisals from Pinnacle Appraisal Group LLC, located at 355 Lexington Avenue, 9th Floor, New York, New York 10017, in order to secure larger commercial real estate loans from Westlake Fidelity Bank, N.A., located at 600 Summer Street, Stamford, Connecticut 06901. According to AUSA Goldfarb, the loan-to-value ratios upon which Westlake Fidelity relied in underwriting and extending these loans were based on falsely elevated property valuations. AUSA Goldfarb did not identify specific properties or specific appraisals during the call, nor did she describe the nature or extent of any involvement by principals of Pinnacle Appraisal Group in the alleged fraud. The undersigned infers from AUSA Goldfarb's description that the government's investigation may extend to one or more individuals at Pinnacle, but this was not confirmed.

Diversion of Investor Capital. Stavros is alleged to have diverted approximately $18.7 million in investor capital from Aegean Realty Fund IV LP and Aegean Realty Fund V LP to personal accounts held by Stavros and to fund operating shortfalls in earlier fund vehicles, including Fund III. AUSA Goldfarb characterized this aspect of the scheme as a "Ponzi-like structure," in which returns paid to earlier investors were funded not from legitimate investment income but from the capital contributions of later investors. She indicated that the government believes this pattern of diversion began no later than mid-2018 and continued through at least the end of 2020.

False Financial Statements to Lenders. Stavros is alleged to have caused false financial statements to be submitted to Westlake Fidelity Bank, N.A. and Harborview Trust Company, located at 88 Broad Street, Suite 200, Bridgeport, Connecticut 06604, in connection with ongoing loan covenant compliance requirements. AUSA Goldfarb stated that these financial statements misrepresented the financial condition of the borrowing entities, including by overstating rental income, understating vacancies, and concealing cross-collateralization arrangements that were not authorized under the applicable loan documents. The false statements were allegedly submitted on a quarterly and annual basis as required by the loan covenants.

Scale of Losses. AUSA Goldfarb referenced the following estimates of aggregate losses arising from the alleged scheme:

• Estimated total investor losses: approximately $43 million

• Estimated total lender losses: approximately $31 million

She further noted that Westlake Fidelity Bank extended approximately $127 million in commercial real estate loans to various Aegean Realty syndication vehicles between 2016 and 2020. These loans were secured by commercial and multifamily residential properties in the New York metropolitan area and Connecticut.

Aegean Capital Raising. Between 2016 and 2021, Aegean Realty Partners raised approximately $215 million across seven syndication offerings from a pool of investors that AUSA Goldfarb described as consisting of high-net-worth individuals, family offices, and small institutional investors. Mr. Caldwell was identified by AUSA Goldfarb as one such investor.

Harborview Trust Company's Role. Harborview Trust Company served as the escrow agent for investor deposits in Fund IV and Fund V, holding investor subscriptions in escrow pending closing of each offering. In addition, Harborview Trust extended a $14.5 million mezzanine loan to one Aegean Realty entity (the specific entity was not identified by AUSA Goldfarb during the call). AUSA Goldfarb did not describe Harborview Trust's current status in the investigation (i.e., whether Harborview is viewed as a victim, a subject, or merely a custodian of relevant records), and the undersigned did not inquire.

4.4 Forensic Accounting and Additional Parties

AUSA Goldfarb mentioned that the government has retained Meridian Forensic Advisors LLC, located at 230 Park Avenue, Suite 1540, New York, New York 10169, to conduct forensic accounting work in support of the investigation. Specifically, Meridian has been engaged to trace fund flows through Aegean Realty entities and related accounts, under the supervision of Managing Director Nathan P. Solis. AUSA Goldfarb did not elaborate on the current state of Meridian's work or its preliminary findings, if any.

AUSA Goldfarb also noted that Westlake Fidelity Bank, N.A. is represented by the firm Graystone & Falk LLP, located at 100 Pearl Street, Suite 1600, Hartford, Connecticut 06103. The lead partner at Graystone & Falk handling the bank's representation is Catherine A. Falk. According to AUSA Goldfarb, Westlake Fidelity Bank is cooperating with the grand jury investigation as a primary victim of the alleged bank fraud scheme. AUSA Goldfarb did not describe the specific form or extent of the bank's cooperation, nor did she indicate whether the bank has produced documents to the grand jury or made personnel available for testimony.

5. Government's Interest in Mr. Caldwell's Documents

AUSA Goldfarb explained the government's specific interest in documents from Mr. Caldwell's files in some detail. The following is a summary of the categories of documents that AUSA Goldfarb identified as being of particular interest to the government. This description supplements and contextualizes the formal categories set forth in the subpoena duces tecum itself.

Capital Movements. AUSA Goldfarb stated that the government is interested in documents reflecting transfers or movements of funds between accounts held or controlled by Mr. Caldwell and accounts held or controlled by Marcus Stavros or any Aegean Realty entity. This includes bank statements, wire transfer confirmations, capital call notices, distribution notices, and similar records. The government's interest in this category relates to its effort to trace the flow of Mr. Caldwell's investments into and distributions out of the Aegean Realty fund vehicles. AUSA Goldfarb stated that the government wishes to determine whether diverted funds were commingled with legitimate investment returns paid to investors such as Mr. Caldwell, and whether the timing or amounts of distributions to Mr. Caldwell may shed light on the movement of capital within the alleged scheme.

Investor Representations. AUSA Goldfarb expressed strong interest in communications between Mr. Caldwell and Stavros or Aegean Realty entities that would reflect the representations Stavros made to investors regarding fund performance, property valuations, loan status, the use of invested capital, and projected returns. The government views Mr. Caldwell as a sophisticated investor who received the same offering materials, quarterly updates, investor letters, and informal correspondence as other investors in the Aegean Realty funds. AUSA Goldfarb stated that Mr. Caldwell's files may contain contemporaneous evidence of Stavros's misrepresentations, including materials that Stavros provided directly to investors but that may no longer be in Stavros's own possession or in the files of Aegean Realty Partners. AUSA Goldfarb noted that the government expects some of these communications to have been transmitted via email and text message, and she encouraged thorough collection from electronic sources.

Appraisals and Valuations. The government is interested in any appraisals, valuation reports, property inspection reports, or similar documents from Pinnacle Appraisal Group LLC or other appraisal or valuation firms that Mr. Caldwell may have received or reviewed in connection with co-investments or due diligence. AUSA Goldfarb noted that, given Mr. Caldwell's co-investment relationship with Stavros (discussed further below in the context of joint venture documentation), it is possible that Caldwell received copies of appraisals or valuations that were shared in the ordinary course of the business relationship.

Joint Venture Documentation. AUSA Goldfarb expressed particular interest in documents relating to two joint venture entities in which Mr. Caldwell and Stavros co-invested outside of the Aegean Realty fund structure. These entities are:

(a) 710 Flatbush Holdings LLC, whose principal asset is the property located at 710 Flatbush Avenue, Brooklyn, New York 11225; and

(b) Stavros-Caldwell Industrial LLC, whose principal asset is the property located at 1500 Commerce Boulevard, Newark, New Jersey 07114.

The government is interested in how these joint ventures were financed. AUSA Goldfarb noted that Westlake Fidelity Bank extended loans of approximately $5.6 million for the Flatbush property and approximately $5.34 million for the Commerce Boulevard property. The government wishes to understand how capital was managed within these joint venture entities, including the sources of equity contributions, the allocation of profits and losses, the use of loan proceeds, and whether any funds from the Aegean Realty syndication vehicles were improperly channeled into or out of these joint ventures. AUSA Goldfarb stated that the government's forensic accountants at Meridian Forensic Advisors are currently tracing certain transactions involving these two entities.

Separation and Exit. AUSA Goldfarb expressed interest in documents relating to Mr. Caldwell's separation from Stavros and the buyout of Mr. Caldwell's interests in the joint venture entities and any Aegean Realty fund positions, which occurred in late 2019 and early 2020. AUSA Goldfarb stated that the government wishes to understand the circumstances and terms of the separation, including the valuation methodology used to price the buyout, the consideration paid to Mr. Caldwell, the source of the buyout funds, and the nature and amount of any disputed management fees that formed part of the separation negotiations. The undersigned notes that this category of documents is potentially significant, as the terms and circumstances of Mr. Caldwell's exit from his business relationship with Stavros may bear on the question of what Mr. Caldwell knew or should have known about Stavros's conduct at or prior to the time of separation.

The undersigned confirmed to AUSA Goldfarb that the document collection and review process is underway and that Calderwood & Harkness intends to produce responsive, non-privileged documents on a rolling basis consistent with the agreed-upon schedule. The first production is targeted for January 20, 2023, which is the extended return date as agreed between the parties.

6. Testimony

The undersigned raised the testimonial component of the subpoena, which commands Mr. Caldwell to appear before the grand jury to testify. The undersigned inquired as to the government's current intentions with respect to scheduling Mr. Caldwell's testimony and the anticipated scope of any such testimony.

AUSA Goldfarb agreed that Mr. Caldwell's testimony obligation would be deferred pending the government's review of the documents produced in response to the subpoena duces tecum. She stated that the government wishes to review the produced documents before determining whether Mr. Caldwell's live testimony is necessary and, if so, what the scope and subject matter of such testimony would be. AUSA Goldfarb indicated that this is the government's standard approach in matters of this nature, where the witness is cooperative and the document production is expected to be substantial.

No testimony date has been scheduled. AUSA Goldfarb indicated that she would contact the undersigned if and when the government determines that it wishes to schedule Mr. Caldwell's testimony before the grand jury. She did not provide any estimate of the timeline on which such a determination might be made, though the undersigned infers that it is unlikely to arise before the government has had an opportunity to review at least the initial rolling production.

The undersigned reserved all rights on behalf of Mr. Caldwell with respect to any future testimony request. Specifically, the undersigned reserved the right to seek further information about the scope and subject matter of any proposed testimony before agreeing to a date, the right to request a pre-testimony proffer session or Queen for a Day agreement if circumstances warrant, and the right to assert any applicable privileges or protections in connection with specific questions or topics. AUSA Goldfarb acknowledged these reservations without objection.

7. Discussion Regarding Other Witnesses and Coordination

The undersigned inquired whether the government had any concerns about coordination between counsel for different witnesses or parties in connection with the investigation. This inquiry was made to identify any potential sensitivities and to ensure that Mr. Caldwell's conduct going forward does not inadvertently create any issues with the government.

AUSA Goldfarb stated that she had no present concerns about coordination among defense counsel. However, she requested that Mr. Caldwell refrain from discussing the substance of the investigation or the subpoena with Marcus Stavros or any other potential witness in the investigation. AUSA Goldfarb did not characterize this request as a formal no-contact order and did not suggest that any such order would be sought from the court at this time. Rather, she framed it as a request consistent with the government's interest in preserving the integrity of the investigation and preventing any potential claims of witness tampering or obstruction.

The undersigned confirmed to AUSA Goldfarb that Mr. Caldwell has already been advised of the importance of refraining from any such communications. This advisement was provided in the initial client advisory memorandum dated December 5, 2022, which was reviewed with Mr. Caldwell in person at our offices. The undersigned further represented to AUSA Goldfarb that Mr. Caldwell has had no contact with Stavros since their business relationship ended in late 2019. The separation agreement between Caldwell and Stavros (and their respective entities) was effective December 15, 2019, and Mr. Caldwell has represented to the undersigned that he has had no personal, business, or social contact with Stavros since that date.

8. Next Steps and Follow-Up Items

Based on the substance of the telephone conference, the following next steps and follow-up items have been identified for the engagement team:

1. Document Collection, Processing, and Review. Document collection, processing, and review shall continue on the current schedule. The first rolling production of responsive, non-privileged documents is targeted for January 20, 2023, which is the extended return date agreed upon between the parties. Clearpath Document Solutions Inc. (project manager: Raj K. Anand; offices at 15 Maiden Lane, Suite 800, New York, New York 10038) is currently processing approximately 14,200 documents (comprising approximately 8.3 gigabytes of data) collected from the following custodians and sources:

(a) Mr. Caldwell's personal email account (jrc@caldwellcap.com);

(b) Mr. Caldwell's personal mobile device (Ashbury Corporation, collected via forensic imaging on December 2, 2022);

(d) Physical files maintained at Mr. Caldwell's office at 590 Madison Avenue, New York, New York 10022; and

(e) The Caldwell Capital Advisors LLC shared network drive (CCA shared drive), which contains electronic files relating to Mr. Caldwell's investments and business activities.

2. Client Update. The undersigned will provide a client update to Mr. Caldwell summarizing the substance of this telephone conference. This update will be provided separately by email on the same date as this memorandum, with a follow-up telephone call to be scheduled as needed.

3. Privilege Review. The engagement team shall continue privilege review of the collected documents with particular attention to communications involving Whitmore & Kessler LLP (specifically, attorney Patricia Sheldon), who provided legal advice to Mr. Caldwell in connection with the joint ventures and the separation from Stavros, and Thornberg & Whitfield CPAs (specifically, accountant Helen R. Thornberg), who provided tax and accounting services to Mr. Caldwell and whose communications may be subject to claims of privilege to the extent they reflect or convey legal advice. The detailed framework for this review will be set forth in the Privilege Review Guidelines Memorandum, currently in draft and anticipated to be finalized on December 14, 2022.

4. Ongoing Assessment of Witness Status. The engagement team shall reassess Mr. Caldwell's witness status on an ongoing basis in light of the government's informal representation that Mr. Caldwell is not a target or subject. As noted in Section 3 above, this informal representation does not preclude a future change in the government's assessment, and the team should be alert to any indications of a shift in the government's posture.

5. Future Communications with the Government. No further communications with AUSA Goldfarb are scheduled at this time. The next contact with the government is anticipated to occur in connection with the first rolling production on January 20, 2023. The undersigned will initiate contact with AUSA Goldfarb in advance of the production date to confirm the production protocol and transmission logistics.

9. Confidentiality and Privilege Notice

This memorandum is a privileged and confidential attorney work product prepared in connection with the representation of Jonathan R. Caldwell in Matter No. 1034-00001. This memorandum reflects the mental impressions, legal analysis, and strategic assessments of counsel and is protected by the attorney-client privilege and the work product doctrine under Fed. R. Civ. P. 26(b)(3) and its common law antecedents. This memorandum should not be disclosed to any third party, including but not limited to other counsel in this investigation, the government, any co-investor of Mr. Caldwell, or any other person or entity, without the prior written authorization of the undersigned or the client. Inadvertent disclosure of this memorandum does not constitute a waiver of any applicable privilege or protection.

CONRAD ASHBY Partner White Collar & Investigations Practice Group Calderwood & Harkness LLP 450 Park Avenue, 30th Floor New York, New York 10022 Telephone: (212) 555-0140

Email: cashby@calderwoodharkness.com

Matter No. 1034-00001

MEMORANDUM OF TELEPHONE CONFERENCE
PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT
FROM: Conrad Ashby, Partner, White Collar & Investigations Practice Group, Calderwood & Harkness LLP
TO: File — Matter No. 1034-00001
CC: Bernard Crawford (Responsible Partner); Daniel Obi (Lead Associate); Lisa Morrow (Working Associate)
DATE: December 12, 2022
RE: Telephone Proffer with Assistant United States Attorney Miriam T. Goldfarb — Grand Jury No. 22-GJ-4481 (U.S. District Court for the Southern District of New York) — In the Matter of the Grand Jury Investigation of Marcus W. Stavros and Aegean Realty Partners LLC
CLIENT: Jonathan R. Caldwell
1. Purpose of Memorandum
This memorandum memorializes a telephone conference held on December 12, 2022, between the undersigned, Conrad Ashby of Calderwood & Harkness LLP, counsel for Jonathan R. Caldwell (subpoena respondent), and Assistant United States Attorney Miriam T. Goldfarb of the Complex Frauds & Cybercrime Unit, United States Attorney's Office for the Southern District of New York, 500 Pearl Street, New York, New York 10007. The purpose of this memorandum is to create a contemporaneous record of the substance of the call for the client file and for reference by the engagement team as the matter proceeds.
The call was initiated by the undersigned in order to discuss the following matters: (a) the current status and scope of the federal grand jury investigation underlying the subpoena duces tecum and ad testificandum served on Mr. Caldwell on November 21, 2022 (the subpoena having been issued on November 18, 2022, returnable to Grand Jury No. 22-GJ-4481, with an original return date of December 9, 2022, subsequently extended to January 20, 2023, pursuant to an email agreement between the undersigned and AUSA Goldfarb dated December 8, 2022); (b) Mr. Caldwell's status in the investigation, including whether the government views him as a target, subject, or witness; and (c) the government's expectations regarding the scope of document production and the timing and nature of any testimony that may be sought from Mr. Caldwell.
Daniel Obi, Lead Associate on this matter, participated on the call in a listening capacity but did not speak during the conference. At the outset of the call, the undersigned confirmed with AUSA Goldfarb that no other representative of the government was on the line. AUSA Goldfarb confirmed that she was the sole government participant. The undersigned disclosed to AUSA Goldfarb that Mr. Obi was listening to the call, and AUSA Goldfarb indicated that she had no objection to his presence.
2. Participants
The following individuals participated in the telephone conference:
Calderwood & Harkness LLP:
• Conrad Ashby — Billing Partner, White Collar & Investigations Practice Group (speaking participant)
• Daniel Obi — Lead Associate, Banking & Finance Practice Group (listening only; did not speak during the call)
United States Attorney's Office, Southern District of New York:
• AUSA Miriam T. Goldfarb — Complex Frauds & Cybercrime Unit (speaking participant)
Call Duration: Approximately thirty-five (35) minutes. The call commenced at approximately 2:15 p.m. Eastern Standard Time and concluded at approximately 2:50 p.m. Eastern Standard Time.
Call Initiated By: Conrad Ashby, via direct dial to AUSA Goldfarb's office line at the United States Attorney's Office, Southern District of New York.
3. Mr. Caldwell's Status in the Investigation
The undersigned opened the substantive portion of the call by asking AUSA Goldfarb to characterize Mr. Caldwell's current status in the grand jury investigation. This inquiry was made consistent with the standard practice of seeking a status proffer from the government at the earliest practicable stage of engagement in connection with a grand jury subpoena, so as to inform the scope and direction of the representation and to assess the nature of any potential exposure to the client.
AUSA Goldfarb stated, informally but clearly, that the government considers Jonathan R. Caldwell to be a witness in the investigation. She stated explicitly that Mr. Caldwell is not a target and not a subject of the grand jury investigation designated Grand Jury No. 22-GJ-4481. AUSA Goldfarb's characterization was unequivocal on this point, and she did not qualify her statement with any hedging language or caveats beyond what is noted below.
AUSA Goldfarb further confirmed that no formal target letter or subject letter has been issued to Mr. Caldwell in connection with this investigation. She stated affirmatively that the government does not presently contemplate issuing any such letter to Mr. Caldwell. The undersigned specifically asked whether there was any ongoing consideration within the office regarding a change in Mr. Caldwell's status, and AUSA Goldfarb responded that there was not, based on the current state of the investigation.
AUSA Goldfarb elaborated on the basis for the government's characterization of Mr. Caldwell as a witness. She stated that the government views Mr. Caldwell as a co-investor with Marcus W. Stavros who may possess documents and information that shed light on Stavros's conduct, particularly with respect to two areas of interest: (a) the representations that Stavros made to investors in connection with the Aegean Realty syndication offerings, including offering memoranda, investor updates, quarterly reports, and informal communications; and (b) the movement of capital between entities controlled or influenced by Stavros, including transfers among fund vehicles and between fund accounts and accounts held by Stavros personally or by entities under his direction.
The undersigned confirmed to AUSA Goldfarb that Mr. Caldwell intends to cooperate fully with the subpoena and with his document production obligations, subject to any applicable privileges and to the terms of the agreed-upon schedule for rolling production. AUSA Goldfarb expressed appreciation for Mr. Caldwell's cooperative posture and indicated that the government's experience to date with Mr. Caldwell's counsel had been professional and constructive.
Note of Counsel (Ashby): While AUSA Goldfarb's characterization of Mr. Caldwell as a witness, and not a target or subject, is reassuring and consistent with our preliminary assessment of the facts, it is important to note that this characterization is an informal oral proffer made during a telephone conference. It does not carry the binding effect of a formal written declination, a grant of immunity (whether statutory immunity under 18 U.S.C. § 6002 or letter immunity), or any other formal agreement between Mr. Caldwell and the government. The United States Attorney's Manual (USAM § 9-11.151) makes clear that a witness's status may change as an investigation develops and that informal representations regarding status do not constrain the government's discretion. Mr. Caldwell's witness status should be monitored continuously as the investigation evolves, and the engagement team should reassess at each stage of the document production process and, critically, in the event testimony is ultimately requested by the government. Any material change in the government's posture toward Mr. Caldwell, or any development in the investigation that could alter Mr. Caldwell's exposure profile, should trigger an immediate reassessment of strategy, including consideration of whether to seek a more formal assurance of non-prosecution before producing additional documents or making the client available for testimony.
4. Summary of the Government's Description of the Investigation
AUSA Goldfarb provided the following information regarding the nature and scope of the grand jury investigation. The undersigned notes that AUSA Goldfarb was careful to describe the government's understanding in general terms and did not disclose grand jury materials, the identities of cooperating witnesses, or the specific evidence that has been presented to the grand jury. The information set forth below reflects the undersigned's best recollection of AUSA Goldfarb's statements during the call.
4.1 Target of the Investigation
AUSA Goldfarb identified Marcus W. Stavros as the apparent and primary target of the grand jury investigation. AUSA Goldfarb described Stavros as the founder, principal, and controlling person of Aegean Realty Partners LLC, a Connecticut limited liability company formed on March 12, 2014, with its principal offices at 280 Atlantic Street, Suite 510, Stamford, Connecticut 06901. According to AUSA Goldfarb, Aegean Realty Partners served as the general partner or managing member of multiple real estate syndication fund vehicles through which capital was raised from investors and deployed into commercial and residential real estate properties, primarily in the New York metropolitan area and southern Connecticut.
AUSA Goldfarb specifically identified the following fund vehicles as being within the scope of the investigation: Aegean Realty Fund III LP, Aegean Realty Fund IV LP, and Aegean Realty Fund V LP, each of which is organized as a Delaware limited partnership with Aegean Realty Partners LLC (or a subsidiary thereof) serving as general partner. AUSA Goldfarb indicated that additional fund vehicles are also part of the investigation but did not enumerate them by name during the call. Based on other information provided by AUSA Goldfarb (described below), it appears that the government is examining at least seven syndication offerings made by Aegean Realty between 2016 and 2021.
AUSA Goldfarb confirmed that Stavros is represented by separate counsel in connection with this investigation. She identified Stavros's counsel as Victor A. Reddick of the firm Reddick, Sorrento & Hale LLP, with offices at 1 Liberty Plaza, 37th Floor, New York, New York 10006. The undersigned has no prior professional relationship with Mr. Reddick or his firm, and no conflict of interest has been identified. AUSA Goldfarb did not describe the nature or extent of any communications between the government and Stavros's counsel, and the undersigned did not inquire.
4.2 Suspected Criminal Offenses
AUSA Goldfarb described the investigation as focusing on potential violations of the following federal criminal statutes:
• Wire fraud — 18 U.S.C. § 1343, relating to the use of interstate wire communications to further a scheme to defraud investors and lenders;
• Bank fraud — 18 U.S.C. § 1344, relating to the knowing execution or attempted execution of a scheme to defraud federally insured financial institutions, principally Westlake Fidelity Bank, N.A.;
• Money laundering — 18 U.S.C. § 1956, relating to financial transactions involving the proceeds of specified unlawful activity, including the alleged diversion and commingling of investor capital described below; and
• Conspiracy — 18 U.S.C. § 371, relating to a conspiracy to commit one or more of the foregoing offenses.
AUSA Goldfarb stated that the investigation is believed to have commenced in early 2022, though she did not provide a precise start date or describe the specific event or referral that triggered the investigation. The undersigned did not press for this information during the call, as it was not directly relevant to the scope of the representation of Mr. Caldwell at this stage. AUSA Goldfarb did not identify any additional targets or unindicted co-conspirators by name, other than Stavros, during the call.
4.3 Nature of the Alleged Scheme
AUSA Goldfarb described the government's understanding of the alleged scheme in general terms. She was careful to note that she was not disclosing grand jury materials or detailed evidence and that her description was intended to provide counsel for Mr. Caldwell with sufficient context to understand the government's interest in documents from Mr. Caldwell's files. The alleged scheme, as described by AUSA Goldfarb, consists of the following principal components:
Inflated Appraisals. Stavros is alleged to have obtained, or caused to be obtained, inflated real estate appraisals from Pinnacle Appraisal Group LLC, located at 355 Lexington Avenue, 9th Floor, New York, New York 10017, in order to secure larger commercial real estate loans from Westlake Fidelity Bank, N.A., located at 600 Summer Street, Stamford, Connecticut 06901. According to AUSA Goldfarb, the loan-to-value ratios upon which Westlake Fidelity relied in underwriting and extending these loans were based on falsely elevated property valuations. AUSA Goldfarb did not identify specific properties or specific appraisals during the call, nor did she describe the nature or extent of any involvement by principals of Pinnacle Appraisal Group in the alleged fraud. The undersigned infers from AUSA Goldfarb's description that the government's investigation may extend to one or more individuals at Pinnacle, but this was not confirmed.
Diversion of Investor Capital. Stavros is alleged to have diverted approximately $18.7 million in investor capital from Aegean Realty Fund IV LP and Aegean Realty Fund V LP to personal accounts held by Stavros and to fund operating shortfalls in earlier fund vehicles, including Fund III. AUSA Goldfarb characterized this aspect of the scheme as a "Ponzi-like structure," in which returns paid to earlier investors were funded not from legitimate investment income but from the capital contributions of later investors. She indicated that the government believes this pattern of diversion began no later than mid-2018 and continued through at least the end of 2020.
False Financial Statements to Lenders. Stavros is alleged to have caused false financial statements to be submitted to Westlake Fidelity Bank, N.A. and Harborview Trust Company, located at 88 Broad Street, Suite 200, Bridgeport, Connecticut 06604, in connection with ongoing loan covenant compliance requirements. AUSA Goldfarb stated that these financial statements misrepresented the financial condition of the borrowing entities, including by overstating rental income, understating vacancies, and concealing cross-collateralization arrangements that were not authorized under the applicable loan documents. The false statements were allegedly submitted on a quarterly and annual basis as required by the loan covenants.
Scale of Losses. AUSA Goldfarb referenced the following estimates of aggregate losses arising from the alleged scheme:
• Estimated total investor losses: approximately $43 million
• Estimated total lender losses: approximately $31 million
She further noted that Westlake Fidelity Bank extended approximately $127 million in commercial real estate loans to various Aegean Realty syndication vehicles between 2016 and 2020. These loans were secured by commercial and multifamily residential properties in the New York metropolitan area and Connecticut.
Aegean Capital Raising. Between 2016 and 2021, Aegean Realty Partners raised approximately $215 million across seven syndication offerings from a pool of investors that AUSA Goldfarb described as consisting of high-net-worth individuals, family offices, and small institutional investors. Mr. Caldwell was identified by AUSA Goldfarb as one such investor.
Harborview Trust Company's Role. Harborview Trust Company served as the escrow agent for investor deposits in Fund IV and Fund V, holding investor subscriptions in escrow pending closing of each offering. In addition, Harborview Trust extended a $14.5 million mezzanine loan to one Aegean Realty entity (the specific entity was not identified by AUSA Goldfarb during the call). AUSA Goldfarb did not describe Harborview Trust's current status in the investigation (i.e., whether Harborview is viewed as a victim, a subject, or merely a custodian of relevant records), and the undersigned did not inquire.
4.4 Forensic Accounting and Additional Parties
AUSA Goldfarb mentioned that the government has retained Meridian Forensic Advisors LLC, located at 230 Park Avenue, Suite 1540, New York, New York 10169, to conduct forensic accounting work in support of the investigation. Specifically, Meridian has been engaged to trace fund flows through Aegean Realty entities and related accounts, under the supervision of Managing Director Nathan P. Solis. AUSA Goldfarb did not elaborate on the current state of Meridian's work or its preliminary findings, if any.
AUSA Goldfarb also noted that Westlake Fidelity Bank, N.A. is represented by the firm Graystone & Falk LLP, located at 100 Pearl Street, Suite 1600, Hartford, Connecticut 06103. The lead partner at Graystone & Falk handling the bank's representation is Catherine A. Falk. According to AUSA Goldfarb, Westlake Fidelity Bank is cooperating with the grand jury investigation as a primary victim of the alleged bank fraud scheme. AUSA Goldfarb did not describe the specific form or extent of the bank's cooperation, nor did she indicate whether the bank has produced documents to the grand jury or made personnel available for testimony.
5. Government's Interest in Mr. Caldwell's Documents
AUSA Goldfarb explained the government's specific interest in documents from Mr. Caldwell's files in some detail. The following is a summary of the categories of documents that AUSA Goldfarb identified as being of particular interest to the government. This description supplements and contextualizes the formal categories set forth in the subpoena duces tecum itself.
Capital Movements. AUSA Goldfarb stated that the government is interested in documents reflecting transfers or movements of funds between accounts held or controlled by Mr. Caldwell and accounts held or controlled by Marcus Stavros or any Aegean Realty entity. This includes bank statements, wire transfer confirmations, capital call notices, distribution notices, and similar records. The government's interest in this category relates to its effort to trace the flow of Mr. Caldwell's investments into and distributions out of the Aegean Realty fund vehicles. AUSA Goldfarb stated that the government wishes to determine whether diverted funds were commingled with legitimate investment returns paid to investors such as Mr. Caldwell, and whether the timing or amounts of distributions to Mr. Caldwell may shed light on the movement of capital within the alleged scheme.
Investor Representations. AUSA Goldfarb expressed strong interest in communications between Mr. Caldwell and Stavros or Aegean Realty entities that would reflect the representations Stavros made to investors regarding fund performance, property valuations, loan status, the use of invested capital, and projected returns. The government views Mr. Caldwell as a sophisticated investor who received the same offering materials, quarterly updates, investor letters, and informal correspondence as other investors in the Aegean Realty funds. AUSA Goldfarb stated that Mr. Caldwell's files may contain contemporaneous evidence of Stavros's misrepresentations, including materials that Stavros provided directly to investors but that may no longer be in Stavros's own possession or in the files of Aegean Realty Partners. AUSA Goldfarb noted that the government expects some of these communications to have been transmitted via email and text message, and she encouraged thorough collection from electronic sources.
Appraisals and Valuations. The government is interested in any appraisals, valuation reports, property inspection reports, or similar documents from Pinnacle Appraisal Group LLC or other appraisal or valuation firms that Mr. Caldwell may have received or reviewed in connection with co-investments or due diligence. AUSA Goldfarb noted that, given Mr. Caldwell's co-investment relationship with Stavros (discussed further below in the context of joint venture documentation), it is possible that Caldwell received copies of appraisals or valuations that were shared in the ordinary course of the business relationship.
Joint Venture Documentation. AUSA Goldfarb expressed particular interest in documents relating to two joint venture entities in which Mr. Caldwell and Stavros co-invested outside of the Aegean Realty fund structure. These entities are:
(a) 710 Flatbush Holdings LLC, whose principal asset is the property located at 710 Flatbush Avenue, Brooklyn, New York 11225; and
(b) Stavros-Caldwell Industrial LLC, whose principal asset is the property located at 1500 Commerce Boulevard, Newark, New Jersey 07114.
The government is interested in how these joint ventures were financed. AUSA Goldfarb noted that Westlake Fidelity Bank extended loans of approximately $5.6 million for the Flatbush property and approximately $5.34 million for the Commerce Boulevard property. The government wishes to understand how capital was managed within these joint venture entities, including the sources of equity contributions, the allocation of profits and losses, the use of loan proceeds, and whether any funds from the Aegean Realty syndication vehicles were improperly channeled into or out of these joint ventures. AUSA Goldfarb stated that the government's forensic accountants at Meridian Forensic Advisors are currently tracing certain transactions involving these two entities.
Separation and Exit. AUSA Goldfarb expressed interest in documents relating to Mr. Caldwell's separation from Stavros and the buyout of Mr. Caldwell's interests in the joint venture entities and any Aegean Realty fund positions, which occurred in late 2019 and early 2020. AUSA Goldfarb stated that the government wishes to understand the circumstances and terms of the separation, including the valuation methodology used to price the buyout, the consideration paid to Mr. Caldwell, the source of the buyout funds, and the nature and amount of any disputed management fees that formed part of the separation negotiations. The undersigned notes that this category of documents is potentially significant, as the terms and circumstances of Mr. Caldwell's exit from his business relationship with Stavros may bear on the question of what Mr. Caldwell knew or should have known about Stavros's conduct at or prior to the time of separation.
The undersigned confirmed to AUSA Goldfarb that the document collection and review process is underway and that Calderwood & Harkness intends to produce responsive, non-privileged documents on a rolling basis consistent with the agreed-upon schedule. The first production is targeted for January 20, 2023, which is the extended return date as agreed between the parties.
6. Testimony
The undersigned raised the testimonial component of the subpoena, which commands Mr. Caldwell to appear before the grand jury to testify. The undersigned inquired as to the government's current intentions with respect to scheduling Mr. Caldwell's testimony and the anticipated scope of any such testimony.
AUSA Goldfarb agreed that Mr. Caldwell's testimony obligation would be deferred pending the government's review of the documents produced in response to the subpoena duces tecum. She stated that the government wishes to review the produced documents before determining whether Mr. Caldwell's live testimony is necessary and, if so, what the scope and subject matter of such testimony would be. AUSA Goldfarb indicated that this is the government's standard approach in matters of this nature, where the witness is cooperative and the document production is expected to be substantial.
No testimony date has been scheduled. AUSA Goldfarb indicated that she would contact the undersigned if and when the government determines that it wishes to schedule Mr. Caldwell's testimony before the grand jury. She did not provide any estimate of the timeline on which such a determination might be made, though the undersigned infers that it is unlikely to arise before the government has had an opportunity to review at least the initial rolling production.
The undersigned reserved all rights on behalf of Mr. Caldwell with respect to any future testimony request. Specifically, the undersigned reserved the right to seek further information about the scope and subject matter of any proposed testimony before agreeing to a date, the right to request a pre-testimony proffer session or Queen for a Day agreement if circumstances warrant, and the right to assert any applicable privileges or protections in connection with specific questions or topics. AUSA Goldfarb acknowledged these reservations without objection.
7. Discussion Regarding Other Witnesses and Coordination
The undersigned inquired whether the government had any concerns about coordination between counsel for different witnesses or parties in connection with the investigation. This inquiry was made to identify any potential sensitivities and to ensure that Mr. Caldwell's conduct going forward does not inadvertently create any issues with the government.
AUSA Goldfarb stated that she had no present concerns about coordination among defense counsel. However, she requested that Mr. Caldwell refrain from discussing the substance of the investigation or the subpoena with Marcus Stavros or any other potential witness in the investigation. AUSA Goldfarb did not characterize this request as a formal no-contact order and did not suggest that any such order would be sought from the court at this time. Rather, she framed it as a request consistent with the government's interest in preserving the integrity of the investigation and preventing any potential claims of witness tampering or obstruction.
The undersigned confirmed to AUSA Goldfarb that Mr. Caldwell has already been advised of the importance of refraining from any such communications. This advisement was provided in the initial client advisory memorandum dated December 5, 2022, which was reviewed with Mr. Caldwell in person at our offices. The undersigned further represented to AUSA Goldfarb that Mr. Caldwell has had no contact with Stavros since their business relationship ended in late 2019. The separation agreement between Caldwell and Stavros (and their respective entities) was effective December 15, 2019, and Mr. Caldwell has represented to the undersigned that he has had no personal, business, or social contact with Stavros since that date.
8. Next Steps and Follow-Up Items
Based on the substance of the telephone conference, the following next steps and follow-up items have been identified for the engagement team:
1. Document Collection, Processing, and Review. Document collection, processing, and review shall continue on the current schedule. The first rolling production of responsive, non-privileged documents is targeted for January 20, 2023, which is the extended return date agreed upon between the parties. Clearpath Document Solutions Inc. (project manager: Raj K. Anand; offices at 15 Maiden Lane, Suite 800, New York, New York 10038) is currently processing approximately 14,200 documents (comprising approximately 8.3 gigabytes of data) collected from the following custodians and sources:
(a) Mr. Caldwell's personal email account (jrc@caldwellcap.com);
(b) Mr. Caldwell's personal mobile device (Ashbury Corporation, collected via forensic imaging on December 2, 2022);
(c) Physical files maintained at Mr. Caldwell's residence at 1140 Park Avenue, New York, New York 10128;
(d) Physical files maintained at Mr. Caldwell's office at 590 Madison Avenue, New York, New York 10022; and
(e) The Caldwell Capital Advisors LLC shared network drive (CCA shared drive), which contains electronic files relating to Mr. Caldwell's investments and business activities.
2. Client Update. The undersigned will provide a client update to Mr. Caldwell summarizing the substance of this telephone conference. This update will be provided separately by email on the same date as this memorandum, with a follow-up telephone call to be scheduled as needed.
3. Privilege Review. The engagement team shall continue privilege review of the collected documents with particular attention to communications involving Whitmore & Kessler LLP (specifically, attorney Patricia Sheldon), who provided legal advice to Mr. Caldwell in connection with the joint ventures and the separation from Stavros, and Thornberg & Whitfield CPAs (specifically, accountant Helen R. Thornberg), who provided tax and accounting services to Mr. Caldwell and whose communications may be subject to claims of privilege to the extent they reflect or convey legal advice. The detailed framework for this review will be set forth in the Privilege Review Guidelines Memorandum, currently in draft and anticipated to be finalized on December 14, 2022.
4. Ongoing Assessment of Witness Status. The engagement team shall reassess Mr. Caldwell's witness status on an ongoing basis in light of the government's informal representation that Mr. Caldwell is not a target or subject. As noted in Section 3 above, this informal representation does not preclude a future change in the government's assessment, and the team should be alert to any indications of a shift in the government's posture.
5. Future Communications with the Government. No further communications with AUSA Goldfarb are scheduled at this time. The next contact with the government is anticipated to occur in connection with the first rolling production on January 20, 2023. The undersigned will initiate contact with AUSA Goldfarb in advance of the production date to confirm the production protocol and transmission logistics.
9. Confidentiality and Privilege Notice
This memorandum is a privileged and confidential attorney work product prepared in connection with the representation of Jonathan R. Caldwell in Matter No. 1034-00001. This memorandum reflects the mental impressions, legal analysis, and strategic assessments of counsel and is protected by the attorney-client privilege and the work product doctrine under Fed. R. Civ. P. 26(b)(3) and its common law antecedents. This memorandum should not be disclosed to any third party, including but not limited to other counsel in this investigation, the government, any co-investor of Mr. Caldwell, or any other person or entity, without the prior written authorization of the undersigned or the client. Inadvertent disclosure of this memorandum does not constitute a waiver of any applicable privilege or protection.
CONRAD ASHBY Partner White Collar & Investigations Practice Group Calderwood & Harkness LLP 450 Park Avenue, 30th Floor New York, New York 10022 Telephone: (212) 555-0140
Email: cashby@calderwoodharkness.com
Matter No. 1034-00001

MEMORANDUM OF TELEPHONE CONFERENCE

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