The attorney for convicted Ponzi schemer Tim Durham is howling in protest at a presentencing report that recommends the Indianapolis financier spend around 225 years in prison and be ordered to pay $209 million in restitution.
The report is not public, but Durham’s attorney, John Tompkins, revealed its contents in a 38-page filing Wednesday that called the harshness of the proposed sentence “absurd.”
Judge Jane Magnus-Stinson is scheduled to sentence Durham, 50, and co-defendants Jim Cochran and Rick Snow on Nov. 30. A federal jury in June found Durham guilty on all 12 felony charges stemming from the collapse of Akron, Ohio-based Fair Finance Co.
Durham co-owned Fair with Indianapolis businessman Jim Cochran, who was convicted on eight of 12 felony charges. Snow, the company’s chief financial officer, was convicted on five of 12 counts.
Prosecutors charged that after Durham and Cochran bought the business in 2002, they raided its coffers to fund their lavish lifestyles and to cover losses at failing businesses they owned.
The huge withdrawals—which were recorded as loans but were not repaid—left Fair without the means to repay 5,000 Ohio residents who purchased more than $200 million of the company's unsecured investment certificates, according to a grand jury indictment unsealed in March 2011.
Judges have final say on sentencings but typically rely on presentencing reports, which are prepared by federal probation employees. Prosecutors did not lodge an objection to the report by Wednesday's deadline.
Tompkins’ objection argued that the report miscalculates the losses suffered by investors, includes a range of allegations that weren’t proven at trial and blames Durham for events outside his control.
Fair shut down in November 2009, following a surprise raid of the company’s offices by FBI agents. A month earlier, IBJ had published an investigative story that questioned whether the insider loans imperiled the company’s ability to repay investors.
“The FBI’s decision to raid Fair Finance’s offices, seize records and just walk away leaving fear and panic … caused the disintegration of a company that employed approximately 75 employees, and held hundreds of millions of dollars in assets,” Tompkins said in his filing.
Court records don’t say what prison terms presentencing reports recommend for Cochran and Snow. Snow’s attorney did not object to the report. A recently appointed public defender representing Cochran was granted more time to decide whether to object.
Prosecutors made available hours of wiretapped conversations between Durham and Cochran, as they scrambled to keep Fair afloat. IBJ collected some key exchanges in a series of edited recordings. In the conversation below, from Nov. 24, 2009, Cochran and Durham briefly discuss the possibility they could serve jail time.