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Successful Durham appeal unlikely, outside lawyers say

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The co-owners of Fair Finance Co. who were sentenced Friday on federal fraud charges plan to appeal their convictions, lawyers for the two men say.

But a couple of veteran criminal defense attorneys who tracked the trial of Tim Durham and James Cochran, along with company chief financial officer Rick Snow, say a successful appeal is an extreme long shot.

“If I was involved in that appeal, the last thing that I would do is overstate any hope to the family,” Indianapolis lawyer Robert Hammerle said.
 
Durham received a 50-year sentence and Cochran a 25-year sentence from Judge Jane Magnus-Stinson for defrauding Ohio investors of $250 million. Snow was sentenced to 10 years. Snow’s lawyer, Jeffrey Baldwin, couldn't’t be reached Monday morning to see if he plans an appeal.

A federal jury in June found Durham guilty on all 12 felony fraud charges stemming from the collapse of Akron, Ohio-based Fair. Durham co-owned the firm with Cochran, who was convicted of eight of 12 felony charges. Snow was convicted on five of 12 counts.

The lengths of their sentences are much shorter than what the government had recommended—225 years for Durham, 145 years for Cochran and 85 years for Snow.

Following Durham’s sentencing Friday, his lawyer, John Tompkins, said he planned to appeal the conviction to the 7th Circuit U.S. Court of Appeals in Chicago. A notice of appeal must be filed within 14 days of sentencing.

Tompkins didn’t return a phone call Monday morning seeking further comment on what legal argument he might use to get Durham’s conviction reversed.

But Friday, he said, “anything that is likely to result in dying in prison can’t be described as a good result.”

Reached by phone Monday morning, Cochran’s lawyer, Joseph Cleary, said he, too, planned to appeal his client’s conviction, though he declined to specify on what grounds.

Cleary did not represent Cochran during his conviction and was appointed as a public defender in late September.

“What the issues in the appeal will be, at this point, I can’t tell you,” Cleary said.

Marty Solomon, a veteran criminal defense lawyer in Indianapolis who has argued several cases in front of 7th Circuit judges, said lawyers mostly cite lack of evidence or judicial error when appealing.

But in the case of Durham and Cochran, the chances of success are slim, said Solomon, who described the evidence as “powerful” and “overwhelming.”

“I would say that Durham and his co-defendants probably have a better chance of hitting a $500 million lottery than succeeding on appeal,” he said.   

Barring successful appeals, Durham, 50, likely will spend the rest of his life in prison and Cochran, 57, most of his remaining years.

Unlike state prisoners, federal inmates must serve 85 percent of their sentences. Durham would need to live to 93 to survive his sentence, and Cochran, to 78. Snow is 49 years old and could be out in 8-1/2 years.

Solomon said Magnus-Stinson likely gave Durham 50 years—basically a life sentence—instead of the recommended 225 years to avoid an appeal on the sentence. Most all federal appeals argue the conviction and not the sentence, he said.

“I never thought of her as a lenient judge,” said Solomon, who appeared before her during her time as a criminal court judge in Marion Superior Court. “So I knew right away that she would be strict with Durham.”

Federal prosecutors sought the stiffer sentences, taking into account 5,122 victims and a loss of $250 million, to punish Durham and Cochran for operating Fair as a Ponzi scheme.

Before his sentencing, Durham said he read many of the letters from victims and regretted that the company failed. He also defended Cochran and Snow but failed to offer an apology.

Cochran, though, sobbed while telling investors how remorseful he was over their losses.

“One thing I know for sure is that I regret what happened to all the investors,” he said. “I’m heartbroken. I never intended for this to happen.”

U.S. Attorney Joseph Hogsett called Durham’s 50-year sentence “a significant price that he deserves.”

The victims "lost their peace of mind, their trust in others, and their faith in goodness and mercy," Hogsett said in a prepared statement. "These are things they will never get back. What Tim Durham and his associates destroyed through self-indulgence was irreplaceable, and those people may never be made whole."

All of IBJ's coverage of Tim Durham and Fair Finance can be found here.


 

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  • Mrs. Keller and lovenox
    I wonder how many doses of Lovenox could not be bought because of Durham. Mrs. Keller, do you know anyone who could not buy Lovenox or other medicines because of Durham greed? Because I do.
  • re: inventor
    Are you on crack? They destroyed thousands of lives! In the amount of suffering they created it compares very well to murder. The total misery in the world is better with the. In jail. If they even did get out they should be branded on their foreheads so people know not to pass them checks or spare change! Nice try! Which Durham are you? Mom? Gym sis?
  • Idea
    I do not think these men should be in prison for so long. When it's all over the trustees will barely see any of their money if they were lucky I'd guess maybe ten cents on the dollar and the families of these men will never see them outside of prison and the taxpayers will pay for more trials. What we are use to as a society is to punish people be having them "rot behind bars" and that is the only way we know to feel as through justice has been served. That is narrow and ignorant minded. These men were found guilty of doing something wrong and they should pay for it but they are not kill anyone. They are clearly educated and smart and could be put to good use actually getting ALL the money to the people who were hurt by this. They should be electronically monitored as any person who is out on bail is and be put to work with all their wages being garnished and re-distributed through someone supervising them. They should also have to pay for the cost to provide them with this luxury as opposed to jail time. A certain amount of funds going to the program, a small amount going to having them live a very minimalist life style and the rest going to the trustees. It would certainly be a lesson learned, they would probably spend the rest of their lives paying it back. However,it takes a situation that is loose(trustees)-loose(families of people in jail)-loose(taxpayers) situation and turns it into one where everyone wins. People are ignorant though and I bet you they would rather loose their money and have these men spend the rest of their lives in prison then get their money back, and have these people pay for the crime they were convicted of with a punishment that is more fitting.
    • Money Damages
      I see where they were sentenced to 50 years, etc. Do they have to pay monetary damages also?
    • It is time.
      I hope these men will accept their punishment and tell their families not to burn through their physical,mental and financial resources by tilting at windmills. The appeals will just not work and while they are entitled to try,it would be better if Durham especially said "Yes, I did it." and let them go forward without this mill stone of false hope.
    • From Scott McKains blog
      "....Had it not been for the support and generosity of my best friend, Tim Durham, I don’t know how we would have made it. He would float us what we needed until we got reimbursed, or we had speeches booked, and could temporarily catch up. The reality is, however, the chances of having a friend like that are more rare than getting struck by lightening. We lost all we had – but, without Tim, we would have been bankrupt and wondering where the next meal – or shot of Lovenox – was coming from...."
      • Fire Lawyer
        Why would he use this Thompkins guy for the appeal? He's obviously a rube with no trial skills. This was seriously the worst attempt at a defense I have ever seen. The public defenders got Cochran half the sentence and guilty verdicts as this guy. He should retire after this pathetic outing. Holy Crap, I hope he didn't really cost a million bucks or HE should be going on trial for fraud!!!! hahahaha
        • TAKING TOTAL ADVANTAGE
          Tim and his crew is doing what they do best!Use everyone and take thier money or thier time and try to get what they can for thier self with out paying for it thier self.It is just business as usual to them.So they have used the lawyer's and if any money was given to any lawyer's by the schemer's it should be given to the bankruptcy trustee.
        • question
          How would these two fund the significant cost of an appeal?

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        1. why oh why does this state continue to elect these people....do you wonder how much was graft out of the 3.8 billion?

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