An attorney for convicted fraud mastermind Tim Durham vowed Thursday to appeal the case to the U.S. Supreme Court if necessary to prove his client did nothing wrong.
Attorneys for Jim Cochran and Rick Snow likely will follow suit in the coming months after a federal jury on Wednesday evening returned a guilty verdict on all 12 felony counts for Durham, eight of 12 for Cochran and five of 12 for Snow.
The government had accused the men of running Ohio-based Fair Finance as a Ponzi scheme that stole more than $200 million from 5,000 Ohio investors who purchased investment certificates from the consumer-loan company.
Durham attorney John Tompkins said he will review the trial record in the next few weeks but expects his appeal will focus on what he claims were improper government wiretaps of Durham phone conversations with Cochran and Snow.
Tompkins tried to keep the jury from hearing the recordings — which were key to the government's case — first by claiming they were obtained without probable cause and later by saying the government ignored segments that cast Durham in a more positive light when it edited 1,800 conversations down to just 19 snippets.
He also plans to take another look at comments made by a fellow defense attorney that led Tompkins to ask for a mistrial shortly before the case went to the jury.
U.S. Attorney Joe Hogsett said his team will do whatever it takes to defend the jury's ruling.
"Many of the defense objections that were raised at trial frankly echoed their objections filed with the court prior to trial," Hogsett said in an interview after the ruling Wednesday. "We will vigorously defend this case on appeal."
Veteran Indianapolis defense attorney Bob Hammerle called it a "certainty" that Durham, Cochran and Snow will appeal the convictions because that's "the only course of action left to them."
Hammerle said it is very likely the convictions will be upheld on appeal, noting that even the best appellate lawyers in the country don't approach the Major League Baseball-record .367 lifetime batting average of the legendary slugger Ty Cobb.
"No matter who you are, the odds are you're going to lose four out of every five appeals," Hammerle said.
The defense attorneys weren't alone in considering a potential appeal as the trial progressed. The possibility also influenced the prosecution's case, Hammerle said.
The court reserved a full three weeks for the trial, but the prosecution led by assistant U.S. Attorney Winfield Ong wound up using only six days to present its case.
"Mr. Ong is very good good as his analysis," Hammerle said. "He wanted to put out evidence that clearly shows what Durham did, but also not take a chance of creating problems on appeal."
Hammerle also noted Judge Jane Magnus-Stinson is known for being thorough and careful to avoid traps that can support appeals of convictions delivered in her courtroom.
Tompkins acknowledged the odds are long for a successful appeal but "every case really should be judged on its own merits." The appeal would start with the U.S. Court of Appeals, 7th District, in Chicago.
He planned to meet with Durham at the Marion County Jail on Thursday to discuss their next moves.
The first priority for Tompkins — along with Cochran attorney Bill Dazey and Snow attorney Jeffrey Baldwin — is preparing for a hearing Monday at which Magnus-Stinson will determine whether the men should be released on home detention until a sentencing hearing in the next few months, where they would be entitled to call character witnesses.
The judge will determine prison sentences, which could amount to life in prison. Federal rules require inmates to serve at least 85 percent of their sentence even with good behavior. Under federal guidelines, the maximum for Durham's 12 convictions is 225 years.
Tompkins noted that several factors can be considered in sentencing, which is "very discretionary," but he said a sentence that amounts to life in prison is a "realistic possibility" for his client.
A New York judge in 2009 gave Bernie Madoff, who ran a $65 billion Ponzi scheme, a record 150-year sentence, though Madoff agreed to plead guilty before a trial. A judge in Houston last week gave R. Allen Stanford, who ran a $7 billion Ponzi scheme, a 110-year sentence.
For comparison, Madoff's scheme involved a dollar figure 325 times larger than the roughly $200 million fraud at Fair Finance.
Tompkins expects his appeal will focus on the government wiretaps that played a key role in the case against his client, but he's also looking for grounds in an exchange that led him to ask the judge for a mistrial before the case went to the jury Wednesday.
His concern: Cochran attorney Bill Dazey in his closing argument Tuesday had gone "too far."
Dazey left many in the courtroom including the other attorneys with the impression he had acknowledged there was a fraud at Fair Finance but that his client did not know it was happening.
"There was a scheme to defraud," Dazey said, but Durham did not clue in Cochran on the plan.
Tompkins argued the comment violated a trial rule that bars attorneys from stating personal opinions.
But a review of the record in open court Wednesday showed Dazey intended the statement as a hypothetical, suggesting that if the jury decided there was fraud, they should consider whether Cochran knew about it. A long pause between the "if" and the rest of his statement led many — including a prosecuting attorney who referenced Dazey's statement in his closing — to misinterpret.
The judge denied Tompkins' motion before calling in the jury to offer final instructions on their deliberations.
The U.S. Attorney's Office offered six days of testimony, thousands of pages of documents and recordings from FBI wiretaps as it tried to convince jurors the defendants ran Fair Finance as a Ponzi scheme. Prosecutors said the defendants gutted Fair by doling out tens of millions of dollars in related-party loans to Durham, Cochran, their friends and their failing businesses. Those loans were never repaid.
Defense attorneys blamed the 2009 collapse of the consumer-loan company on a "perfect storm" of a bad economy, bad press and newly skeptical Ohio regulators.
Defense presentations lasted less than two hours and did not include testimony from Durham or his co-defendants.
"I didn't get the picture across clearly enough," Tompkins said Thursday. "That's always disappointing."
An archive of IBJ's coverage of Tim Durham and Fair Finance is available here.