Portraying convicted Ponzi schemer Tim Durham as one of "the greediest, most selfish and remorseless of criminals," federal prosecutors re-emphasized Monday that they think the former Indianapolis businessman should spend the rest of his life in prison.
And they stressed that Durham's two convicted accomplices deserve the same fate.
Durham, set to be sentenced Friday on fraud charges related to the collapse of Fair Finance Co., asked in a Monday court filing that he be given a five-year sentence that would include three years in prison followed by two years of home confinement. The requested punishment was far more lenient than the 225-year sentence recommended by prosecutors in an Oct. 31 presentencing report.
A grand jury in March 2011 indicted Durham, business associate James Cochran and former Fair Finance Chief Financial Officer Rick Snow on charges of wire fraud, securities fraud and conspiracy to commit wire and securities fraud.
In June, jurors convicted Durham on all charges, Cochran on eight of 12 felony charges, and Snow on five of 12 charges.
Prosecutors said in Monday's filing that they considered their felonies to be "as serious as any financial fraud crime ever committed."
Though Durham's two associates weren’t convicted on all counts, prosecutors said sentencing recommendations of 145 years in prison for Cochran and 85 years for Snow are warranted.
“Even taking into account Durham’s incredible greed and disdain for investors, he could not have committed this crime by himself,” U.S. Department of Justice attorney Henry P. Van Dyck said in court documents. “Cochran and Snow were his right and left hand, each playing a role that was absolutely essential to the success of the scheme.”
Prosecutors say that after Durham and Cochran bought Fair Finance 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 the grand jury indictment.
The presentencing report asking that Durham be sentenced to 225 years in prison also calls for him to pay $209 million in restitution.
In lobbying for the stiff sentences, prosecutors argue in their court filings that at least $208 million in investor money had been squandered, while only about $6 million has been collected from Fair’s debtors, with almost no prospect for more recoveries.
But in the Monday filing asking for the five-year sentence, Durham attorney John Tompkins called the 225-year recommendation “absurd” and said the presentencing report “is heavily influenced by an erroneous loss calculation under the advisory guidelines.”
“There is no need to incapacitate Mr. Durham beyond [five years] to prevent him from committing further crimes, given his extraordinarily low risk of recidivism, or to deter others from similar conduct,” the filing said.
Prosecutors, though, countered by arguing that Durham fails to "show a hint of remorse for his misconduct, only the same arrogant, narcissistic behavior that led to it."
And they maintain that a lengthy prison sentence indeed will deter other executives from committing similar crimes.
Judges have final say on sentences but typically rely on presentencing reports, which are prepared by federal probation employees.
“Any sentence other than life imprisonment would incentivize others to commit the financial crimes, and the aggravating factors surrounding their conduct justifies the strongest possible deterrent message—the maximum sentence,” Van Dyck wrote.
Unlike the five-year sentence Durham’s lawyer recommends, attorneys for Cochran and Snow do not state in court filings what an appropriate prison term might be for their clients. They only argue that the recommended sentences are too lengthy and not appropriate given their limited roles in the scheme.
Snow’s attorney, Jeffrey A. Baldwin, argued in a filing that his client is remorseful for his involvement and, unlike Durham and Cochran, did not profit from the fraud beyond the salary he earned from his CFO’s job.
“He cannot be said to have been motivated to participate in the scheme for financial gain, unlike Durham and Cochran,” Baldwin wrote. “His very limited participation appears to have been motivated by following directions of his superior and prolonging the life of Fair Finance.”
Prosecutors don't buy that argument. They say Snow was more than “Durham’s pawn” and worked with him to create fraudulent and misleading financial statements that concealed the true nature of the fraud to investors and the state of Ohio.
Because Snow was an accountant steeped in the nuances of both Fair Finance and Durham’s finances, he perhaps knew better than anyone how terrible Fair’s financial condition truly was, according to court documents.
Prosecutors, however, reserved some of their harshest criticism for Cochran, maintaining that his “what’s-in-it-for-me” attitude consumed much of his relationship with Durham.
“While he was talking investors into keeping their money at Fair as it was collapsing, he was simultaneously whining to Durham and Elizabeth McClure, a bookkeeper, that he needed more money to meet his exorbitant personal expenses,” Van Dyck wrote.
Further, “Cochran’s self-pitying complaint about whether he could buy McDonald’s for his kids after taking $10 million in loans and racking up $50,000 per month in expenses is reflective of why he should receive a lengthy sentence as any single piece of evidence in this case.”
Durham and Cochran bought Akron, Ohio-based Fair Finance in a 2002 leveraged buyout. According to court documents, Durham drained tens of millions from the company by making loans to himself and failing businesses he owned. Millions also went to Durham’s mansions, a yacht, part ownership of an airplane and extravagant trips.
But Tompkins said Monday that Durham never intentionally defrauded the investors, and that actual losses they suffered were brought on by the recession as much as Durham’s actions.
For all of IBJ's coverage of Fair Finance and Durham, click here.