Gaming the Game

by Sean Patrick Griffin

  “He was a good guy, and we obviously got to know each other. In fact, he was a recovering alcoholic, and we’d talk about the program, and about football and other stuff. He actually told me they were going to use trainees to follow me, and they did. They would take field agents and do field training, surveillance training, with me as the mark; they were assigned to follow me. At some point they assigned another agent to work with him, and when I’d do my walks in the park one would be at one end of the trail and another would be at the other end. I am guessing they wanted to make sure I wasn’t meeting anybody from my former business in the park. He eventually got pulled off the detail and was replaced by another agent, but I didn’t talk to either of the other agents, who were both females.”

  Getting used to constant FBI surveillance, urine tests, and travel restrictions was easy for Battista compared to adjusting to the subtleties of life that were now problematic. Being seen in public, regardless of why, was often a cause for media attention and thus an avoided hassle if at all possible. For the father of five active kids, this was not much of an option many times, and one particular example offers insights into Battista’s mind-set as 2008 began. “My kids were playing on their basketball teams in the YMCA league,” Battista says. “Well, normally I’d be like other parents and volunteer to keep score and ref games, but I didn’t because I could just see how some people might view me reffing with all that was going on. I could just see the pictures everywhere of me with a whistle in my mouth reffing a basketball game.”

  The anxieties and hassles besetting Battista since his August 2007 arrest finally came to a halt when he was indicted on February 8, 2008, alongside his co-conspirator and longtime friend Tommy Martino. “When I got arrested in August 2007,” Battista says, “I was told I would be indicted in thirty days. But then they filed an extension for ninety days, and then another extension. It was like a toothache that wouldn’t go away, and our lives had been on hold that entire time.” Battista, who had gotten the message and wore appropriate attire to court this time, and Martino were each charged with conspiracy to commit wire fraud and conspiracy to transmit wagering information across state lines. Martino was also hit with two counts of perjury for his false statements before the grand jury. Each man was facing up to twenty years in prison on the gambling charges, with Martino facing an additional ten years total for the perjury counts against him. With those formalities aside, Battista and his lawyer, Jack McMahon, moved on to the next key piece of business.

  “We went up, got indicted, and asked for the evidence against us,” Battista says. Jack McMahon took a shot at getting some advance notice regarding his main concern. “We were discussing discovery,” McMahon says, “and I was evaluating the strength of the government’s case. I just threw out there to see if they had wiretaps, ‘My understanding is that there are no tapes in this case,’ to see what their response was. They said there were not, which was a good thing.” “When I heard that they didn’t have any wiretapped conversations,” Battista says, “I was relieved, and it validated all the stuff I had done with the phones.” McMahon also broached the idea of a plea agreement with Assistant U.S. Attorney Jeff Goldberg, Battista says. “Jack reached out to Jeff Goldberg about a deal and said, ‘Listen. We’ll take illegal gambling right now, but we’re not going to take wire fraud,’ and Goldberg turned us down.

  “I think they thought the scandal was bigger, and wanted to see if I was involved with any other referees, any other sports. By then, they knew I moved for other sports and probably knew how much money I was moving on games, and assumed something was going on. I think they figured I couldn’t just be gambling if that much money was involved.” There was at least one moment of levity among the other, more serious, moments. Battista had a brief exchange with an FBI agent to whom he had earlier offered advice. “One of the FBI agents I helped with his fantasy football team when I was arrested back in August winked at me and thanked me for the picks,” Battista says. “Apparently, he did well with them.”

  The media awaited Battista, McMahon, Martino, and Herr as they left the courtroom, and McMahon, never one to shy away from the cameras, explained that he expected to put Tim Donaghy on the stand, at which point “a lot of things may come out through cross-examination . . . There’s a lot of things that everybody doesn’t know about.” McMahon added that if Donaghy was to testify, “There’s more to come, that’s all I can tell you. I think it could get messy.” When McMahon made his comment regarding things possibly getting “messy,” he had no idea how prophetic this would be, though in different circumstances than he was envisioning, and for wholly different reasons. McMahon, like his client, Jimmy Battista, had no idea that Tommy Martino—whom McMahon had assisted for months, even though Martino wasn’t his client— had cooperated with authorities. Furthermore, no one knew of the impending battle that was soon to be fought between Tim Donaghy and the federal government, whom Donaghy wrongly assumed was unconditionally by his side. The spring of 2008 was about to bloom with more high drama for the three NBA betting scandal conspirators.

  Footnotes

  Battista’s wardrobe was so curious it earned a mention in the New York Post the following day.

  In summarizing the conspiracy to commit wire fraud, the government in part wrote, “On or about and between December 1, 2006, and April 30, 2007, both dates being approximate and inclusive, within the Eastern District and elsewhere, the defendant Timothy Donaghy, together with others, did knowingly and intentionally conspire to devise a scheme and artifice to defraud the NBA by depriving the NBA of the intangible right of honest services, and for the purpose of executing such scheme and artifice, transmitted and cause to be transmitted writings, signals and sounds by means of wire communication in interstate and foreign commerce, in violation of Title 18, United States Code, Sections 1343 and 1346.”

  Technically speaking, Donaghy’s unsupported and self-serving claim re: Battista supposedly threatening Donaghy, which included one sentence re: Donaghy’s supposed perception of Battista vis-à-vis organized crime, was quoted in the government’s “5K1” letter in consideration of Donaghy’s sentencing. Importantly, though, this appeared without comment by federal authorities regarding Donaghy’s allegation against Battista, and instead included an explicit comment by authorities re: Donaghy being a willing participant in the scheme (i.e., not an extortion victim of some supposed “mafia” plot). For its part, the federal government never described this as an organized crime conspiracy, and thus never promoted it as such, despite the fact the investigation was conducted by FBI agents in an organized crime unit and prosecuted by Assistant U.S. Attorneys in the Department of Justice’s Organized Crime and Racketeering Section.

  Regarding the process of authorities “requesting” extensions for indictments, Jack McMahon says, “They have thirty days to indict from the time of the complaint and warrant. Many times a prosecutor will ask for more time to take it before a grand jury simply because of time management issues. It isn’t unusual, and there’s nothing nefarious about it. Defense attorneys usually agree to it because it’s not going to get you anything to say, ‘No.’ If they don’t get it done, they just dismiss it, and refile the charges. They can come at you again. It’s not like its double jeopardy and the case is going to go away. Asking for an extension is simply a procedural thing and a professional thing. You don’t want to break balls with a prosecutor that I am going to have to work with as a case moves forward. I have never objected to a prosecutor’s request for an extension.”

  What Characters

  SOON AFTER BEING indicted, Jimmy Battista and Tommy Martino each pleaded not guilty, and they at last knew what it was they’d be fighting together as a team. That, at least, is what Battista and his attorney, Jack McMahon, thought. McMahon, though never Martino’s counsel, had worked with Tommy and his father from the start, including recommending McMahon’s friend Jake Griffin as Martino’s lawyer. Griffin represented Martino shortly after Martino realized he was the target
of a federal investigation, including accompanying Martino during his trip to appear before the grand jury, but was later replaced. “I don’t recall why he got rid of Jake Griffin,” McMahon says, “but Tommy wound up getting Vicki Herr to defend him. She was from Delaware County and I didn’t know her that well. I called her up and told her that since she was now on the case we should communicate and all that, to which she agreed. I drove her up to do the first appearance, the bail appearance. When we had lunch together that day, she expressed to me that she didn’t know much about federal procedure and that she hadn’t really done any federal cases. I explained what she needed to know, and told her it was no big deal.

  “After the first appearance, she and I corresponded frequently about everything. I was also talking a lot to Tommy and to Tommy’s dad. Jimmy would call me up and tell me that Tommy’s dad was real nervous, and that he was such a nice man, and would ask if I could meet with him. Well, Tommy’s father didn’t trust Vicki Herr to give him the right information, so I would talk to him and meet with him. I spent a good bit of time trying to give him the best insights I could.” Though McMahon humored Battista’s repeated requests to assist Tommy’s father, he never knew why Jimmy was so concerned about Mr. Martino. The reason was simple: Battista had not forgotten Martino’s father offering various forms of assistance over the years, including and especially bailing Battista out of jail many years before when Battista feared contacting his own parents. Given these circumstances, one can only imagine what Battista and McMahon thought when they made an alternately unbelievable yet believable— and heartbreaking and infuriating—discovery in early April 2008 as Assistant U.S. Attorney Jeff Goldberg, on behalf of the federal government, was attempting to negotiate a plea deal with Battista and Martino.

  “Goldberg came in with an offer,” Battista says. “Tommy’s lawyer, Vicki Herr, said the deal was based on the amount of money I supposedly paid Elvis. She kept referencing an amount of money, which was one hundred and twenty thousand dollars. Jack kept saying to Vicki, ‘What are you talking about?’ The whole time I couldn’t figure out what the fuck was going on, because we had never talked about money. Meanwhile, Vicki kept telling me I should take the government’s deal. It was April, and the government had come in with a deal where I would be facing three years, which was down from four to six years. They then brought that down to twenty-one to twenty-four months, but I didn’t think the government was giving me all the evidence I was entitled to.1 I said, ‘Fuck it. Let’s go to trial. You’re not giving me enough evidence, and I don’t care which statements you have.’ Vicki called me in early April saying, ‘They’ve got a deal. We’ll get twenty-one to twenty-four months, and you’ll probably have to do eighteen to twenty-one months.’ I told Jack, ‘I’m not going to jail for two years when they haven’t even given all the evidence against me.’ Vicki said the U.S. Attorney’s office told her, ‘If Battista takes the deal, we’ll wipe away Martino’s perjury,’ and we’d each do eighteen to twenty-one months. I was like, ‘How can I take the deal when I don’t know what they have to incriminate me?’ At that point, it was their third or fourth offer, and I was getting pressure from Vicki saying ‘Take the deal, take the deal.’ ”

  The tension was building between the Battista/McMahon and Martino/Herr camps, even though they had ostensibly been fighting the case together as one until this point. “I got a call late one night from Vicki, and she was just drilling me,” Battista says. “She was saying, ‘You don’t understand. You’re going to save Tommy from the perjury. He’s your buddy. This was your idea. You got him hooked into this. If you don’t do this, you’re not a good friend!’ I was also getting pressure from Tommy’s father, and I kept saying the same thing back about the lack of evidence. It got to about midnight, and I turned the deal down and went to sleep. Vicki called me the next morning and said, ‘Goldberg won’t give you another chance.’ I was like, ‘Are you fucking kidding me?’ I was thinking to myself, ‘Something’s up. Why is she so persistent about this?’ It was ten o’clock in the morning, and I turned the deal down again . I wanted to go to trial; I thought we had a good shot. They were asking too many times if I was going to take the deal. I didn’t know if somehow the NBA was trying to avoid embarrassment, or if the government didn’t want to get ready for a trial. Two o’clock in the afternoon came around, and I was sitting in my kitchen with a few relatives and Jack called. He said, ‘I need you to get to a fax machine,’ and I asked, ‘Why?’ Jack said, ‘You wanna know why they want you to take the deal? Because Tommy went behind your back, went up there on three different occasions, and told the feds everything except who kidnapped the Lindbergh baby!’ ”

  Among the thousands of pages of discovery materials sent by the U.S. Attorney’s Office to Battista via McMahon were memos documenting Tommy Martino’s proffer sessions with the FBI, which McMahon had just come across. “Jack and I, of course,” Battista says, “didn’t know that Tommy went up to New York to meet with the government on July 27th, August 6th, and August 9th of 2007, met with the FBI and the U.S. Attorney, and told them everything. Here, Tommy was the one that told the feds about the money I gave Elvis. Of course, Tommy lied about the money, because it was much more than a hundred and twenty thousand dollars that I paid Elvis. Anyway, that’s why Vicki and Tommy wanted me to take the deal; they knew Tommy had proffered, and had been denied a ‘5K1’ letter.2

  “If I had taken the deal, I never would have known that Tommy cooperated against me. I couldn’t believe it; I was mad, disgusted, you name it. Here, the whole fucking time Jack and I had been working with Vicki and Tommy the past few months, they had already worked with the government against me. Jack helped Vicki because Tommy and his dad thought she was a bumbling idiot, and because I felt bad for Tommy. I called Tommy up, furious, and told him I knew he cooperated against me, and he denied it. I was looking at his fucking proffers while I was on the phone with him, and he was still denying ever talking to the FBI about everything.” The April 2008 conversation marked the last time the two men, who had been pals since grade school, spoke at any length with each other. Jack McMahon, though certainly not a stranger to legal soap operas, says the ordeal represented a career first.

  “We were working on a plea negotiation,” McMahon says. “The government’s position was that Jimmy and Tommy both had to take the plea or both had to go to trial. They offered Tommy a plea within certain guidelines and it was up to Jimmy to accept a plea for Tommy’s deal to be accepted. Vicki Herr called me up to discuss it, and when I told her that Jimmy wasn’t going to take the plea deal that was offered to him, she got into this hysterical rant: ‘Jimmy owes it to Tommy! He should do it for him. What about loyalty?!’ She basically said Jimmy was a piece of shit if he didn’t take the deal and help out Tommy because he got Tommy into this. During that phone call, she also started throwing around dollar figures regarding how much money Jimmy and Tommy paid Donaghy. As she was talking, I was thinking, ‘Where is she getting these figures? Something’s not right,’ because we had never talked about them before. Meanwhile, she was begging me about this plea.

  “During all of those months prior, Vicki Herr knew she had taken Tommy Martino in and that he talked to the feds, never letting on to me at all. She totally misled me; just a rotten thing to do. What should have happened is that Vicki should have come to me and said, ‘Look, we probably shouldn’t be talking anymore about the case. It’s not proper we discuss strategy right now.’ That would’ve told me what I needed to know going forward, without ever saying he had cooperated. That’s what a lawyer would say to another lawyer, and you would know exactly what that means. She wouldn’t have violated her attorney-client privilege, but it would have been a professional way to say to me, ‘You shouldn’t, for your own client’s sake, be talking to me right now and giving me ideas about what your defense is, because my client is cooperating.’

  “Remember, Jimmy had asked me numerous times to talk to Tommy and to Tommy’s dad. His dad thanked me I don�
�t know how many times, because he knew I didn’t have to talk to him or meet with him. I helped him because I’m a father, too, and I can imagine what he was going through, and because it mattered to Jimmy, who clearly felt bad for Mr. Martino. The whole time I was talking to them and giving them information, at least Vicki and Tommy, if not Mr. Martino, knew Tommy went behind Jimmy’s back and talked to the feds. Unbelievable. Just unbelievable! It has never happened to me before. Look, Tommy had every right to cooperate, and every lawyer has to do the best they can for their client. But, don’t lead the other party along for months and months trying to get them to help you after you’ve cooperated against them! It was the most underhanded, sneaky, rotten thing I have seen in the legal profession in a long, long time.” Meanwhile, Battista was faced with yet another of his friends and business associates cooperating with authorities against him. The latest revelation had no impact on his beliefs or actions going forward. “I never even thought about being a rat,” Battista says. “I wasn’t going to harm somebody else for the choices I made. The feds came to me several times with different offers to help me help myself, as they looked at it. My view is that you have to take ownership of what you did. If you’re gonna gamble, if you want to get in the game, you gotta pay the price. It sucks, but you knew what you were doing. I know a lot of people who have gotten caught over the years who informed on others to save their own asses. I could never do that.”

  Following the discovery that Martino had met with federal authorities, Battista and McMahon predictably parted ways with Martino and Herr, and soon witnessed Martino accept a plea deal on April 16, 2008.3 Martino pleaded guilty to wire fraud, with authorities dropping the remaining charges (two for perjury, and one for transmitting wagering information), and agreeing to seek a prison sentence of between twelve and eighteen months. Martino’s deal was predicated on Battisa accepting his plea deal soon thereafter because if federal authorities were going to have to prepare for a trial, anyway, they reasoned there was little sense in accepting Martino’s deal by itself. For Martino, matters essentially remained unresolved, because it was not a given Battista would plead guilty. The former pro gambler was in a fighting mood throughout the entire process when it came to defending himself and, perhaps more importantly to him, to addressing Donaghy’s version of events. “They next offered me twelve to eighteen months for the conspiracy and wire fraud,” Battista says, “and I said, ‘Nope. We’re going to trial.’ They said, ‘This is the best you’re going to get. Take it.’ I wasn’t taking wire fraud because I didn’t bribe anybody. I was just a gambler. I wasn’t in a conspiracy to defraud the NBA like they were saying.”