Gaming the Game

by Sean Patrick Griffin

  With that unnecessary fiasco resolved, Battista was left to deal with his other problems, which at the time were dominated by his quest to stay drug-free. Even that, however, now incorporated his fears about the ongoing federal investigation. “I went to Morning Miracles for my addiction meeting at the start of the day,” Battista says. “You needed a sponsor in the program, and this guy offered to be mine. I was convinced he was an FBI agent. So, I made a few phone calls and gave somebody his license plate number, and made sure he was who he said he was. That is how scared I was about everything that was going on.” At the time, Battista was trying to get back in shape, and his daily regimen included walking five miles in Valley Forge Park. He thought a white Ford Explorer was following him during the walks, and was fighting his paranoia each time he thought he saw the SUV. Times were tough for Battista, and would be getting more challenging in the coming days and weeks as he learned what loomed for the recently neutered Sheep.

  Footnotes

  In that case, Angelina, who was a codefendant with six others including reputed mob boss Joseph “Skinny Joey” Merlino, was charged with attempted murder, extortion, illegal bookmaking, and receipt of a stolen Lamborghini.

  In his senior season at St. John’s, McMahon was team captain of the squad that made it all the way to the NCAA Championship game, where they lost to Kansas.

  In the 1963-64 season, alone, Oscar Robertson was NBA Most Valuable Player, Jerry Lucas was NBA Rookie of the Year, and Wayne Embry was an All-Star.

  Jack McMahon says that his ties to the NBA were of no consequence to him once Battista explained the context of his actions. “When Jimmy first came to me,” McMahon says, “the issue of my dad’s background with the NBA didn’t enter into my decision as to whether to take the case. A guy comes to me with a problem and this is what I do, I am a defense attorney. The fact that there was some tangential relationship with the NBA made no difference to me whatsoever.”

  Gambling Investigation Rocks NBA

  JIMMY BATTISTA’S UNYIELDING paranoia was aggravated sometime around the first week of May, when FBI agents Harris and Conrad visited his home a third time. “The agents and I spoke in front of the house on my sidewalk,” Battista says, “and they asked me for the first time about Tommy. I said, ‘He is one of my friends.’ They wanted to know if I used to work out of his house, and I explained that I did. I didn’t want to get into anything further, and handed them Jack’s card and said, ‘You really need to talk to my lawyer about all of this.’ They asked again, ‘Are you sure you don’t want to come work with us?’ and I told them that I wouldn’t do something like that. Each time I spoke with them it was very professional, not like some people would expect.

  “As I walked back to the house, I was thinking, ‘Fuck, I gotta call Tommy.’ Now I was really nervous because Tommy was a weak seed who would sell his mom out for two joints. I went to a pay phone and called him, and said I needed to meet with him right away. I told him about the FBI coming down two weeks before, and that they asked about him that day.1 He acted all tough and strong and said, ‘I won’t say anything to them or to the grand jury.’ The FBI showed up at Tommy’s work pretty soon after that, and he called me right afterward so that we could meet in the parking lot of a steakhouse at the King of Prussia Mall.2 We used to meet there all the time to discuss business, and I didn’t care if people were watching me or taking pictures, whatever. After talking about the FBI, I told Tommy I needed some of my money back from the last payment he made for me. There was a mix-up and he wound up with ten thousand dollars he shouldn’t have; Tommy thought it must have been a gift. Well, he said he didn’t have any money left, that he had put new rugs in his basement. I was pissed because I essentially furnished his entire fucking house, and there was no way rugs for his basement cost him ten grand. He always took money that wasn’t his, anyway, so I just let it go. He gave me about five hundred bucks, and we made an appointment to go down to see Jack McMahon the next day. Tommy and I went to Jack’s office together so that we could fight this together.”3 “I first met with Tommy Martino when he was subpoenaed to appear before the grand jury and needed a lawyer,” McMahon says. “I spoke with him and his father a number of times. I recommended a good friend of mine, Jake Griffin, who is a criminal defense attorney.”

  Martino soon complained to Battista that the FBI had visited him a few more times, pressuring him with all the information they were picking up off the street. “Like Jack did with me,” Battista says, “Jake had been telling Tommy not to talk to the feds and that he was going to ‘take the fifth’ in front of the grand jury. When the FBI visited him, though, Tommy tried to tell them stuff so they’d think he was being cooperative, things like what he and Elvis did, how long they were friends, how long he knew me, that I worked out of his house, that I was a gambler, and that I owed a lot of money to people, and stuff like that. Just from what he told me he discussed with them, I was getting more nervous.”4

  There was no chance Battista was going to adopt Martino’s “tell them something” strategy before the grand jury that was convening in New York to hear the early stages of the NBA betting scandal case. “I was supposed to go up right around the time Tommy was,” Battista says. “The feds came back to my house again about a week before I was supposed to appear. By this point, Jack had already notified Tom Siegel, the U.S. Attorney in Brooklyn at the time, that I was going to invoke my Fifth Amendment right before the grand jury.5 [FBI Agent] Paul Harris said, ‘We’d really like you to re-think your decision not to speak with us. You can either hop on the train now, or it’s gonna run you over.’ My heart sank when he said that because I immediately assumed Tommy spoke with them; he was a two-to-one favorite to fold! But, I told them, ‘I’m not going to “get on the train,” I’m just going to “roll the dice.” ’ Paul said, ‘Okay, but you’re going to regret this.’ It was another brief exchange. I was assuming by now they weren’t traveling all the way down from Brooklyn just to see me for five minutes. They were probably making the rounds interviewing people in the area, because me and Tommy didn’t live too far from each other. They also might have been staying in a hotel or something, because otherwise it didn’t make sense to me.”6

  Tommy Martino was slated to appear before the grand jury on May 30th, and as the date approached Battista grew increasingly worried over what his pal might do before the panel. It was clear to him that, just as with Martino’s onthe-street FBI interviews, his co-conspirator wasn’t going to follow his lead and simply refuse to answer any of the panel’s questions beyond those required by law. “Before Tommy went up to go before the grand jury, he told me that his father and some other people told him that he should answer some questions. Well, his lawyer, Jake, wrote down on a piece of paper what things Tommy was not to discuss whatsoever. He told Tommy, ‘Anytime the names “James Battista,” “Sheep,” “Baba,” “Elvis,” or “Timothy Donaghy” come up, you take the Fifth.’ ”

  When speaking to the grand jury, Tommy Martino was asked two questions that would cause him, and ultimately his co-conspirators, problems in the very near future. First, he was asked, “Can you give an explanation of why you so frequently have conversations with Mr. Donaghy followed by calls with Mr. Battista?” Martino incredibly replied to the grand jury, “He always called me at inopportune times. I talk to everybody. It is coincidental.” The other, more direct, query was, “Have you ever communicated any information from Mr. Donaghy about a game to Mr. Battista?” Martino responded with a simple, and blatantly false, “No.” These circumstances helped get the ball rolling for authorities, who suspected Martino had just perjured himself, which would likely assist them in efforts to flip Martino into a cooperating witness. That would have to wait, however, and for now Battista was getting bad news about Martino’s performance. “Tommy’s lawyer, Jake, called my lawyer, Jack, to tell him what a fucking idiot Tommy was. Jake, of course, wasn’t allowed in the room during the questioning, and couldn’t believe that Tommy kept stopping the quest
ioning to leave the room and ask Jake what he should answer. All the stuff Jake had written on the paper went out the door when Tommy started answering questions. Jake told Jack that Tommy was the dumbest person he had ever defended.”

  Tommy Martino would probably have been surprised to hear such a critical assessment of his grand jury appearance, because, Battista says, “Tommy came back and told me, ‘I didn’t tell them anything. If anything, I helped you.’ He told me what he remembered about the questions, and the way he was describing everything made me nervous. ‘If anything, I helped you’ ? How the fuck could he help me if he wasn’t supposed to say anything?! To make this more ridiculous, Tommy went to the grand jury high. He told me he got high beforehand to relax him. None of this affected what I was going to do when I went up, but I knew right then that things weren’t looking good. I said, ‘Tommy, you better get in touch with Elvis so that he knows they’re gonna get in touch with him.’ The FBI was going to ‘put two and two together’ if they hadn’t already.

  “Tommy told me that he called Elvis the next day, and that Elvis was freaking out on the phone. All this shit with the FBI and the grand jury had been going on for a while, and Elvis didn’t know anything about it. I was telling Tommy to tell Elvis to keep quiet, ‘We don’t know what evidence the government has, whether they have wiretaps or anything. You gotta first know what’s going on before you do anything.’ We had a code, ‘cranberries,’ which meant you didn’t talk to anyone. We’d say, ‘Everything is cranberries,’ or ‘Is everything still cranberries?’7 The FBI knew I wasn’t going to talk, and it was obvious to me that they were going to reach out to Elvis after Tommy. Jack McMahon called Elvis to try and get him to come to Philadelphia for a meeting, but Elvis didn’t want to do that.” “I wanted to know if Donaghy had a lawyer,” McMahon says. “At that point in time I was thinking, ‘If Jimmy is telling me the truth, there are only three players in this that know anything: Donaghy, Tommy, and Jimmy. That’s it.’ Absent any of the three talking, the government had no case. I called Donaghy’s representation a few times, left messages, but no one ever got back to me. I just assumed at that point Donaghy was cooperating, or was planning to cooperate. Anytime you get involved in a federal case, the two questions you ask yourself are: ‘Are there wiretaps?’ and ‘Who is cooperating?’ ”

  Notwithstanding McMahon’s troubles contacting whoever was representing Tim Donaghy in early June 2007, Tommy Martino was initially still speaking with Donaghy. “Elvis and Tommy kept asking if I was ‘cranberries,’ ” Battista says. “Well, to me, I was cranberries and there was nothing to it; we didn’t know what they had against us. I was always so careful with the phones that I couldn’t imagine they had phone conversations, but with those two fucking idiots you never knew.” As the three conspirators fretted constantly about the federal investigation, Battista learned he would not have to appear before the grand jury. “[Assistant United States Attorney] Tom Siegel called Jack about a week after Tommy spoke to the grand jury,” Battista says, “and said, ‘Let your client know we don’t need him before the grand jury. He’s going down.’

  “The whole time all of this was going on, I kept waiting for this to break in the news. I couldn’t believe no one knew about the investigation. The NBA playoffs were going on at the time, and the championship was coming up.8 I just assumed the league had somehow pressured everyone to keep quiet. Meanwhile, Tommy kept updating Elvis with stuff that was going on until about seven to ten days after Elvis found out about everything. Elvis stopped taking Tommy’s calls, and we knew what that meant.”

  On June 15, 2007, Tim Donaghy traveled to Brooklyn with his attorney, Tampa-based John F. Lauro, and met with the FBI for his first proffer session with federal law enforcement officials.9 The referee had last worked a game back on May 12th, during the NBA playoffs, and had to know his career— and much of his life—was over as he spoke with authorities. Unlike his co-conspirators, Donaghy opted to cooperate from the jump. The move was savvy, and would manifest itself in ways benefitting Donaghy that he couldn’t have imagined when he decided to work with the feds. When Donaghy first met with authorities, they saw someone who was contrite and broken. They also saw someone who had, by his own admission, destroyed something he loved—his career as an NBA referee. In large part because he approached them proactively and because of his self-criticism, authorities found his version of events compelling and credible.10 It also didn’t hurt that Battista wasn’t cooperative whatsoever, and that authorities strongly believed Martino had perjured himself before the grand jury. Donaghy had played his cards brilliantly, and his version of events would dominate the investigation and its media coverage for the foreseeable future.

  Though not one of the agents working the case, FBI Supervisory Special Agent (SSA) Phil Scala headed the Gambino Squad (which housed the investigation) and was privy to many aspects of the NBA betting scandal probe.11 Scala’s comments accurately reflect the sentiments of others privy to the Donaghy proffer sessions when he says of the three-person conspiracy, “You always try to corroborate, but there are other things you can’t corroborate that are ‘he said-she said.’ When you sign someone up, until something’s proven to be a lie, you gotta go with the person who signs the agreement. You gotta go with the cooperator’s sincerity in things that are painful to him, and there were a lot of things Donaghy told us that we felt he was being honest about.” Such sentiments had implications for Donaghy, Battista, and Martino, not to mention for anyone who would later try to understand the NBA betting scheme. Days after Donaghy’s New York trip, on June 20th, the FBI notified the NBA’s Senior Vice President of Security (and former FBI agent) Bernie Tolbert of its investigation. The following day, NBA Commissioner David Stern and other league executives met with the FBI, and were told that thirteen-year veteran referee Tim Donaghy had bet on NBA games, including games he officiated. None of this was made public, and Donaghy’s former partners were still nervously pondering what he was telling the feds.

  “In early July,” Battista says, “I met with Tommy and he told me that Elvis had called to say that Tommy and I were fucked. He said, ‘Sheep did this and Sheep did that, and he’s going away for a long time.’ He also told Tommy that I threatened him, and Tommy didn’t understand what the fuck he was talking about. That was the first time I got a sense of what was going to happen. I didn’t know that Elvis was cooperating, but I suspected he was because he essentially cut off contact with Tommy. Tommy was really worried about everything.

  “[FBI agents] Paul Harris and Gerry Conrad came down one last time to talk to me. Paul said, ‘This is your last chance. We’d really like you to come work with us.’ I said ‘No’ again, and just asked that they consider my kids. I said, ‘Let me turn myself in or meet me around the corner.’ I had been busted before with a dozen cop cars and state police. I didn’t want a scene in front of my house. Paul was pretty cool about everything, and said he would pass my concerns along to Tom Siegel, the U.S. Attorney, who had the final say. By now, the feds probably knew that I wasn’t up to anything, that I had gotten clean, and that I wasn’t back to work betting. I’m sure they were waiting for me to start calling Zorba, The Chinaman, and everybody, but I stayed clear of all of that. By then, my life was nothing but sobriety meetings and trying to take care of my family.” Soon afterward, Battista soon got the expected news. “Tom Siegel called Jack to let him know they were going to arrest me,” Battista says, “and Jack just asked that they let me turn myself in instead of making a big show of everything. They agreed, but in a few days the story broke in the New York Post .”

  “NBA in a ‘Fix’ ” screamed the newspaper’s headline on July 20th, grabbing the attention of those who followed sports and beyond. The tabloid article began, “The FBI is investigating an NBA referee who allegedly was betting on basketball games—including ones he was officiating the past two seasons—as part of an organized-crime probe in the Big Apple.” Though the piece made no mention of the co-conspirators, the wall of
secrecy surrounding the scheme was about to collapse, and Battista immediately made plans. “I told Denise, who was done with cosmetology school,” Battista says, “that she should go down the Jersey shore with the kids for the rest of the summer and stay with a family member because I didn’t want them around for what was probably going to happen. I could tell by her reaction that our marriage was really on the rocks.” The national hype that followed the seminal article was followed four days later by a lengthy news conference held by NBA Commissioner Stern, who said, “I have been involved . . . with the NBA for forty years in some shape or form. I can tell you that this is the most serious situation and worst situation that I have ever experienced.”

  Stern defended the league against suggestions they could or should have known about Donaghy’s illicit activities in part by stating, “we have for many years retained a consultant in Las Vegas whose job it is to inform us whether there are any movements or unusual movements in betting on the NBA about which we should be concerned, and we’re also in contact with the Nevada Gaming Board who monitors that for their own purposes to determine whether there has been anything that we should be concerned about or particularly aware of.” Stern also noted that since the 2003-04 season, the NBA has employed thirty observers to capture and critique every call a referee makes in every game. These observers then review a tape of each game, and many game tapes are reviewed by group supervisors. These assessments offered no evidence Donaghy’s on-court behavior was problematic. In fact, Stern made a point to say that Donaghy, who formally resigned on July 9th, was “in the top tier of accuracy” among referees.