Gaming the Game

by Sean Patrick Griffin

  The sentencing phase of the criminal justice process was next up for Battista and his co-conspirators, and, like the recently concluded plea negotiation phase, there was surreal drama in the offing. Tim Donaghy had played his hand skillfully until now, dating to his seminal meeting with federal authorities, but his hubris was about to come back and bite him yet again.

  Footnotes

  Though Jimmy Battista was not satisfied with the pace or contents of evidence discovery, his attorney, Jack McMahon, had no problems with the process or actions of the government in this regard. The “dribs and drabs” of evidence that so troubled Battista, were of little concern to McMahon, who says, “Discovery in a federal case often comes in piecemeal fashion, so that wasn’t that unusual.” Records indicate the first discovery letter from authorities to McMahon was sent on March 13, 2008, followed by 2,541 pages of material made available on March 17th, another 355 pages of material on March 31st, and an undisclosed amount of material on April 3rd.

  Section 5K1.1 of the 2001 Federal Sentencing Guideline Manual, “Substantial Assistance to Authorities,” states in part: “Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” Such motions, which are essentially requests for reductions in sentences, are commonly referred to as 5K motions, and the submissions are often referred to as 5K letters.

  Vicki Herr decribed Tommy Martino as a “minimal participant” in the conspiracy, and said that Martino “allowed himself to be used by two people he considered to be very good friends.”

  According to the Philadelphia Inquirer, the charges against Tim Donaghy were dropped when Charles Brogan did not show up for a hearing. That this matter and others were later dropped, of course, would likely have had little impact on Jack McMahon’s use of the seminal court fi lings for the purpose of examining Tim Donaghy’s character and credibility.

  According to the Philadelphia Daily News, the Mansueto lawsuit was eventually dropped. The paper offered no further insights regarding when or why this was so.

  The matter was later dropped when Kim Donaghy failed to show for a court appearance.

  In betting circles, the term “steam” typically refers to the movement of betting lines caused by significant action by the likes of Jimmy Battista. Many a bettor simply follows “the steam” when placing a wager. That is, they monitor betting line moves and bet with the movement, assuming a sharp is placing bets on that side. As evidenced by Battista’s career, following the steam can be a big mistake if the steam is actually a concerted effort to move a line for the purpose of taking the other side of the proposition when the line has been sufficiently manipulated.

  In this regard, the Delaware County Daily (Delco) Times later wrote, “Aside from former O’Hara coach Buddy Gardler, every former teammate, classmate, or associate contacted . . . by the Daily Times either chose not to comment on Donaghy or didn’t return phone calls. . . While there are those empathetic to Donaghy and his gambling-related plight, many others consider his a karmic downfall.”

  Jack McMahon was going to be pitted against a worthy adversary in AUSA Jeffrey Goldberg, who was accustomed to high-profile cases, including those involving cooperating witnesses with checkered backgrounds. In fact, just as he was overseeing cases against the NBA betting scandal’s three co-conspirators, AUSA Goldberg was successfully prosecuting another important and much-publicized case before a jury—one which relied heavily upon cooperators with checkered pasts. On December 28, 2007, Goldberg, along with two of his USAO colleagues, obtained guilty verdicts against Colombo crime family acting boss Alphonse “Allie Boy” Persico and high-ranking member John “Jackie” DeRoss. Following eight weeks of trial, Persico and DeRoss were found guilty of orchestrating the 1999 murder of Colombo family underboss William “Wild Bill” Cutolo, and later received life sentences for their roles in the slaying.

  Specifically, the U.S. Attorney’s Office for the Eastern District of New York wrote that the “primary basis for venue” was “Matthew Winick’s review of game reports in Nassau County, Long Island.” The Eastern District consists of Brooklyn, Queens, Long Island, and Staten Island. As of March 2010, Matt Winick is listed as the NBA’s Senior Vice President of Scheduling and Game Operations. Because the issue of venue was never litigated, the USAO’s other possible reasons for establishing venue in EDNY are unknown.

  McMahon says at best the venue motion would have produced only a temporary victory. “You have to remember that for the defense, venue isn’t necessarily a great win. It would have just meant the location would have moved from Brooklyn possibly to Manhattan [Southern District of New York] or, more likely, to Philadelphia, where the Eastern District of Pennsylvania is. It’s not like the case is dismissed. To fight venue is not really that important because you have to be in a courtroom somewhere! The only difference would have been convenience, being in the Eastern District of Pennsylvania. At best, it would have put a little pressure on the government, and made it a little more difficult to move the entire case down to Philadelphia.”

  Team Donaghy’s Assault on Justice

  BY MAY 2008, FBI Special Agent Paul Harris had been heading the NBA betting scandal probe for approximately sixteen months, the last nine of which were in coordination with Assistant U.S. Attorney Jeffrey Goldberg, who was overseeing the prosecution of the case. Up next for Harris, Goldberg, and their colleagues was the commonly milquetoast sentencing stage. On May 8th, AUSA Goldberg filed a 5K letter on behalf of Tim Donaghy, explaining to the court why a downward departure from the sentencing guidelines was warranted for cooperating witness Donaghy. The eight-page letter was filed under seal, which is standard procedure and is done primarily for the protection of the cooperator. Such letters often identify the names of the parties against whom the cooperator has informed, and retaliation is of great concern. It is also true that authorities file such motions under seal so as to not affect ongoing investigations, and so that future prospective cooperators have confidence in the process.

  The U.S. government’s letter briefly summarized the NBA betting scandal, and offered Donaghy’s version of the scheme’s December 12, 2006, origins in favor of Tommy Martino’s for obvious reasons, namely that Martino had perjured himself before the grand jury prior to doing an about-face and cooperating with authorities.1 The key portion of the letter read:

  Martino eventually drove to Donaghy’s hotel to pick him up. When Martino arrived, Donaghy noticed that Battista was also in Martino’s car. Donaghy joined them, and they drove to a local store. While in the car, Battista and Martino confronted Donaghy with the fact that Donaghy had been providing picks to [Jack] Concannon. Battista then told Donaghy that he should provide his picks to Battista and Martino, and not to Concannon. Battista also told Donaghy that Battista ‘didn’t want the NBA to find out’ about what Donaghy was doing. Donaghy interpreted this comment to mean that if Donaghy did not agree to deal with Battista and Martino, Battista would inform the NBA about Donaghy’s prior dealings with Concannon. At a later meeting back at Donaghy’s hotel, Battista also threatened harm to Donaghy’s family. Battista told Donaghy that ‘you don’t want anyone from New York visiting your wife and kids.’ Over the preceding years, Donaghy had come to believe that Battista had organized crime connections, and so he interpreted ‘New York’ to be the Mafia. Before the meeting concluded, Donaghy agreed to provide picks to Battista and Martino.

  Importantly, prosecutors added a footnote which read, “Although Donaghy was concerned by Battista’s comment regarding Donaghy’s wife and children, he has never taken the position that he was anything other than a willing participant in the scheme with Battista and Martino, and, before them, with Jack Concannon.”

  The May 8, 2008, letter also included a passage regarding Donaghy’s judgment while refereeing games that would be discussed and debated for years to come. The government wrote, “There is no
evidence that Donaghy ever intentionally made a particular ruling during a game in order to increase the likelihood that his gambling pick would be correct. He has acknowledged, however, that he compromised his objectivity as a referee because of his financial interest in the outcome of NBA games, and that this personal interest might have subconsciously affected his on court performance.”

  The government summed up Donaghy’s preparation for his trial testimony by saying that Donaghy was “at all times cooperative, forthcoming, candid, and always willing to assist the government as needed.” In addition to the substantive narrative regarding the NBA betting scandal, there was also a one-line mention which noted, “The government also debriefed Donaghy concerning improper conduct on the part of other NBA referees who had engaged in gambling that violated NBA rules.”

  Because the U.S. Attorney’s Office had so many discussions with Tim Donaghy and his attorney, John Lauro, by this point, Team Donaghy had a good sense of what the government’s letter would contain. Thus, it wasn’t surprising when the May 8th filing wasn’t contested or subjected to debate in the days that immediately followed. What happened next in the process, though, was a key flash point in the sentencing process, and was largely ignored or misunderstood by the press. The U.S. Probation Office’s pre-sentence investigations of the three codefendants were taking place behind the scenes, and—just like the government’s 5K letter—the resulting pre-sentence reports (PSRs) were not filed publicly. This, too, was standard procedure because PSRs contain personal information regarding things like finances (i.e., tax returns), substance use, family matters, and so on. When a PSR is submitted, the prosecution and the defense review the report and may object to, or seek to clarify, certain aspects of the PSR in writing to the court. In Donaghy’s case, the amount of loss to the NBA was a hotly contested part of the PSR because there was debate as to how to calculate the league’s “loss,” and because the loss assessment was going to be a great driver of the sentence Donaghy received.2 The Probation Office originally calculated loss at approximately one hundred and fifty-four thousand dollars, to which John Lauro filed an objection stating loss should be considerably less—approximately forty thousand dollars. At this point, the U.S. Attorney’s Office submitted an eight-page letter on May 16th with their assessment, which yielded a loss of just over three hundred thousand dollars— almost eight times what Team Donaghy proposed, which would also mean a much greater enhancement to Donaghy’s sentence. It is assumed that the government’s “loss letter” set Team Donaghy off, resulting in a wave of hyperbole and salacious drama that filled sports talk radio airwaves for months to follow.

  On Monday, May 19th, the next business day following submission of the government’s loss letter, John Lauro filed two letters with the court. Unlike the government’s 5K letter, each Lauro filing soon found its way into the press. The first asked for the 5K letter to be unsealed, using language that implied the government was doing something extraordinary—and being less than transparent—by placing the letter under seal.3 The second May 29, 2008, letter included Team Donaghy’s objection to the government’s loss calculation—and much more.4 The twenty-seven page diatribe took after the government’s May 8th 5K filing, arguing a host of things that—starting with the very next day—generated news cycles, spawned numerous legends, and muddied the waters for anyone trying to follow the scandal. Among other things, the letter assailed the government’s plea deals with Jimmy Battista and Tommy Martino as too lenient compared to Donaghy’s agreement, and then offered two related components of a proposed conspiracy theory in this regard. Lauro first attempted to parse the FBI from the U.S. Attorney’s Office for the Eastern District of New York (USAO), as if they weren’t collaborating throughout and in agreement as to how to proceed with the case; and then hypothesized that the NBA may have “pressured the USAO into shutting down this prosecution to avoid the disclosure of information related to Tim’s conduct . . . ” One has to wonder what Team Donaghy’s motivation was with such a public suggestion, since the small universe of FBI agents and government prosecutors working the case knew full well how they were getting along, and given the chance would gladly debunk such inferences before the Court. Insiders thus assumed Donaghy was simply engaged in a publicity stunt in an effort to divert attention away from his actions onto others, because this “argument” would almost certainly never be a factor in court regarding Donaghy’s sentencing.

  Team Donaghy’s May 19th letter, in which it was argued Donaghy should be a candidate for a reduced sentence because of his “pathological” gambling addiction, went on to state that were it not for Jack Concannon and Jimmy Battista, Donaghy would not have bet on NBA games. Specifically, Lauro wrote, “When Concannon lost money at casinos, he pressured Tim to use his knowledge to help select likely basketball teams that they could bet on. They also placed bets on games Tim officiated,” before turning to the claim that Battista “threatened” Donaghy to provide picks to Battista when Concannon and Donaghy supposedly stopped betting in the fall of 2006. Donaghy’s version of the December 12, 2006, events spawning the NBA betting scheme were offered, and thus the public was finally introduced to it as news of the letter spread. Whereas media coverage of the betting scandal in July 2007 humored an organized crime connection, simply because of the original reporting of the scheme popping up on a Gambino wiretap, by now investigative reporters—with the help of their law enforcement sources—dismissed the supposed mob angle. This was particularly true in the Philadelphia area, where Battista was a known commodity. Various local, state, and federal investigations into the gambling industry disclosed Battista and his Delco pals repeatedly over the years. When his name was first mentioned in July 2007, local reporters—including and especially those who work the area’s “mob” beat—reviewed existing files and reached out to their law enforcement and underworld sources only to confirm earlier analyses: Battista, like his longtime colleague Joe Vito Mastronardo, was one of the area’s white-collar pro gamblers.5 Furthermore, it was also clear by now that Battista, Ruggieri, Concannon, Martino, and Donaghy were all familiar with each other dating back to their high school days.6

  Next among the sensational aspects of Team Donaghy’s lengthy May 19, 2008, filing, Lauro wrote that Donaghy’s “assistance expanded greatly to include NBA-related matters that were of interest to law enforcement officials. These matters had nothing to do with improper activities by Tim, but involved practices well-known to NBA insiders. For example, Tim described the gambling activities of NBA officials, which were contrary to league rules.” Lauro said that Donaghy “furnished information concerning circumstances that favored certain players or teams over others” and explained to authorities that “particular relationships between officials and coaches or players affected the outcome of games, and other practices prevented games from being played on a level playing field.” About all of this, Lauro argued that the U.S. Attorney’s Office “declined to advise the Court fully about Tim’s extensive cooperation with respect [to] activities involving the NBA that had nothing to do with the instant offense” [the ’06-07 betting scandal].

  The NBA’s president of league and basketball operations, Joel Litvin, quickly issued a statement in response to Team Donaghy’s filing, which said, “The letter filed today on Mr. Donaghy’s behalf contains an assortment of lies, unfounded allegations and facts that have been previously acknowledged, such as the fact that certain NBA referees engaged in casino gambling in violation of NBA rules.” The statement continued, “The letter is the desperate act of a convicted felon who is hoping to avoid prison time and the only thing it proves is that Mr. Donaghy is no more trustworthy today than he was when he was breaking the law by betting on NBA games.” It wasn’t surprising, of course, to see the league respond in such fashion, and the NBA was joined by numerous critics who mocked Team Donaghy’s various claims, especially those regarding relationships between individuals involved in NBA games. As one Philadelphia sports columnist wrote at the time, “An in
teresting, almost laughable section of Lauro’s filing had to do with the way that players, coaches and referees get along. If Judge Amon is a sports fan, she will wad up this section and dunk it into the office wastebasket . . . His contention is that refs get along with certain players and coaches and do not get along with others. He also seems to feel this is news.”

  As the public processed Team Donaghy’s allegations and the reactions to them, the U.S. Attorney’s Office moved to unseal Donaghy’s 5K letter, filing their consent to Lauro’s request on May 29th. Since such letters are sealed for the privacy and confidentiality of what the cooperating witness has done, there was no reason—following Team Donaghy’s May 19th lengthy filing and request—to keep the 5K letter under seal. As a result, Judge Amon ordered the letter unsealed on June 2nd, at which point Team Donaghy said in a statement: “The release today of the government’s May 8, 2008, letter regarding Tim’s cooperation confirms our position that Tim has been entirely truthful and credible. The letter puts a lie to the personal attacks against Tim made by the NBA.” Days later, the NBA added to the drama, responding to Team Donaghy’s allegations and, more importantly, offering the league’s own loss estimate.7 The latter was really the issue, because the NBA submitted a letter to the Court stating it was entitled to a million dollars in restitution from Donaghy.8 As one legal analyst said of the unexpected and potentially significant request, “If Donaghy cannot make restitution, his jail sentence could be extended. Donaghy’s plans for a reduced sentence [are] suddenly in jeopardy as a result of the NBA’s demand.”

  Not to be outdone, Team Donaghy soon responded to the NBA’s filing by submitting a four-page letter of its own, ostensibly so that Judge Amon could “have complete information to determine the extent of Tim’s cooperation” in consideration of Donaghy’s sentencing. This time, Donaghy claimed to have given federal authorities details of game manipulation by other referees, including during the 2002 and 2005 NBA playoffs. In 2002, Donaghy alleged, two referees known as “company men” acted “in the interests of the NBA” by extending a playoff series to seven games. Donaghy also claimed that in 2005 the league gave referees instructions that benefitted the NBA because they “prolonged the series, resulting in more tickets sold and more televised games.”9 Though the filing didn’t name the series being discussed, analysts quickly and easily identified them: 2002—Los Angeles Lakers vs. Sacramento Kings; 2005—Houston Rockets vs. Dallas Mavericks, two series which had already been the subject of considerable public debate and conspiracy theorizing. Depending on one’s perspective, therefore, Donaghy had either consciously or coincidentally chosen as examples two series—out of the thirteen years Donaghy officiated—that just so happened to fit his claims of game manipulation by other referees but which didn’t require an insider’s perspective, per se , all the while acknowledging no influencing of games on his part.10