Gaming the Game

by Sean Patrick Griffin

  The sentencing fireworks that began with the May 8, 2008, government 5K filing continued in court proceedings and, especially, in filings, with the issues of loss/restitution and cooperation clearly paramount to Team Donaghy throughout this phase of the criminal justice process. In these regards, the U.S. Attorney’s Office filed two letters on June 27th, and each had implications for the former referee. Concerning the issue of loss, the government was still light years away from Team Donaghy’s suggested modest figure, and regarding Donaghy’s cooperation, the government was forced to offer a more critical analysis than it had earlier (when it offered the pro forma version). In short, prosecutors wrote that Donaghy had exaggerated his cooperation and minimized his role in the scheme. In a direct retort to Team Donaghy’s assertion that the government “didn’t advise the Court fully about Donaghy’s extensive cooperation with respect to activities involving the NBA that had nothing to do with the instant offense,” prosecutors wrote, “the activities involving the NBA that Donaghy discusses . . . are not a proper consideration [for a reduction in sentencing] because further investigation by the government of these alleged activities did not lead to evidence of prosecutable federal offenses.”11 Furthermore, prosecutors said that by the time Donaghy decided to cooperate “the government had a clear understanding of the criminal conspiracy and who was involved.” The U.S. Attorney’s Office, which had been careful to keep Donaghy on the hook vis-à-vis his culpability, also clarified its view of the former referee’s role in the scandal. “It was only Donaghy,” prosecutors wrote, “who had a duty to provide honest services to his employer, the NBA. Without Donaghy, the scheme simply could not have been carried out.”

  The U.S. Attorney’s Office filings didn’t end the back-and-forth, and the parties were soon before Judge Carol Amon’s court hashing out these related issues.12 AUSA Goldberg, who avoided discussing the case in the press throughout, publicly commented on the information Donaghy had provided to the FBI, telling Judge Amon, “A lot of it was unsubstantiated, and that’s important. So, we’ve never taken the position that Mr. Donaghy has lied to us. But, there is a difference between telling the truth and believing you’re telling the truth and finding out later that a number of allegations don’t hold any water.”

  Tim Donaghy’s co-conspirator, Jimmy Battista, remained on the sidelines awaiting his own sentencing throughout Team Donaghy’s antics that began in May 2008. Battista wasn’t surprised one bit to see Donaghy claim: that Jack Concannon had “pressured” Donaghy in 2003 into betting on NBA games, including games he officiated; or that Battista “threatened” Donaghy in 2006 into continuing betting on games he officiated; or, especially, that—on top of all this—Donaghy wasn’t responsible for his actions, anyway, because he was a “pathological” gambler. The former gambler watched with some delight as Donaghy exhibited—again and again—the behavior patterns that Battista’s lawyer, Jack McMahon, never got to illustrate to a jury. As far as Battista could tell, the notoriety and infamy Donaghy garnered as a result of his criminality hadn’t changed a thing in the former ref. Team Donaghy’s actions, while frustrating and problematic for federal authorities, weren’t altogether surprising to them, either. Indeed, by now at least one of Donaghy’s handlers had concluded the former referee was “a fucking loose cannon.”

  To Jimmy Battista, Tim “Elvis” Donaghy was throwing a tantrum (i.e., assailing federal law enforcement) when he didn’t get his way (i.e., the government’s loss letter, no prosecution of other NBA officials) and placing blame elsewhere (i.e., Concannon, Battista, the culture of the NBA, addiction) for Donaghy’s own actions. Battista wasn’t the only party in the process who found Donaghy’s denials of responsibility without merit. AUSA Goldberg, in addition to numerous other similar comments made by prosecutors about Donaghy’s culpability, told the Court that Donaghy “knew what he did when he was doing it.”

  By this point, Team Donaghy and the United States Attorney’s Office had waged a battle that left quite a paper trail, and included some interested exchanges in court, only a hint of which made their way into the news. While the sports media, especially, focused on Donaghy’s sensational NBA conspiracy claims (most, if not all, of which were already familiar to even semi-serious NBA followers), insiders were preoccupied with the merits of the legal arguments and their implications. Team Donaghy’s tactics forced interested observers to more closely inspect the actual record which meant, especially, reading what little the federal government had said, and, just as importantly, what authorities had not.

  With regard to Team Donaghy’s allegations that the U.S. government had not sufficiently pursued the case against Jimmy Battista, John Lauro repeatedly implied that Battista had extorted Donaghy and thus Battista should have faced harsher sanctions than he received.13 Problematically for Team Donaghy, Battista was never charged with extortion, and the government included Donaghy’s self-serving and unsupported claims regarding Battista’s threats only in consideration of Donaghy’s supposed state of mind upon entering into the conspiracy.

  Regarding Donaghy’s claim that Battista indirectly alluded to New York mobsters in the initial meeting on December 12, 2006, Lauro discussed the unsupported Donaghy allegation no less than five times in his May 19, 2008, letter; five times more than the federal government mentioned the claim throughout the months of court filings and public utterances.14 What was included in the government’s May 8, 2008, filing vis-à-vis Battista’s supposed mob ties was exclusively what Donaghy said he believed based on what he said Tommy Martino perceived and told Donaghy; nothing more. Perhaps the most succinct take on the scheme’s genesis, and thus on Team Donaghy’s salacious mob and extortion assertions, came from U.S. District Judge Carol

  B. Amon who, after almost a year of proceedings before her court, wrote (emphasis added), “In December of 2006, defendants James Battista and Thomas Martino approached Donaghy and informed him that they were aware that he had been placing bets on NBA games, including games he had refereed. Battista proposed an arrangement whereby Donaghy would provide picks on NBA games to Battista through Martino.” The final verdict, so to speak, on the scandal’s origin characterized it simply as an illicit business transaction between three interested parties.

  With respect to Team Donaghy’s allegations that the U.S. government didn’t sufficiently prosecute other NBA officials, FBI agents spent who knows how much time looking into Donaghy’s myriad claims, all with negative results. Given Team Donaghy’s repeated public accusations, perhaps it was lost on Donaghy that FBI agents and Assistant U.S. Attorneys are in the businesses, respectively, of investigating and prosecuting crimes . Whatever personal failings of NBA personnel and breaches of NBA protocol Donaghy described were for others beyond law enforcement authorities to concern themselves. It wasn’t Donaghy’s fault he was not privy to the government’s findings regarding his various claims, of course; confidential information is communicated with cooperating witnesses one way, namely from the witness to the government’s investigators and prosecutors. Donaghy had no clue from whom the FBI was able to obtain information, nor how or why. Former FBI Supervisory Special Agent Phil Scala, who retired just prior to the sentencing phase of the case, was privy to much of what transpired and says the FBI found no evidence of criminal wrongdoing on the part of other NBA referees. Scala told one newspaper, “If there were people that should have been indicted, they would have been, including other refs.”

  Throughout the back-and-forth with government prosecutors regarding Donaghy’s claims against other referees, Team Donaghy seized upon the USAO’s earlier statement that Donaghy had been “cooperative, forthcoming, [and] candid.” Team Donaghy attempted to extrapolate from this to essentially argue that this meant everything Tim Donaghy told the federal government was true . This argument had a fatal logical flaw, however, since it is quite possible for a cooperating witness like Donaghy to believe something is accurate, and believe he is telling the truth, but his assertions are (perhaps grossly) inaccurate. P
rosecutors were therefore careful not to say Donaghy lied to authorities because for all they knew Tim Donaghy believed what he told federal agents.

  In sum, Donaghy’s various “leads” consumed the time and resources of the FBI and, to a lesser extent, the U.S. Attorney’s Office. While authorities are used to such wild-goose chases, they are far less accustomed to a criminal defendant effectively taking a bullhorn to proclaim the federal government had minimized what a quality informer he was. Perhaps it was also lost on Team Donaghy that the disclosure of confidential information could have jeopardized the hard work of numerous federal officials in other cases, directly and indirectly.15 The last word on Team Donaghy’s overhyped allegations that law enforcement authorities did not sufficiently pursue “leads” offered by Donaghy came, again, from Judge Carol Amon. Amon stated she had found “no bad faith on the part of the government in concluding that the information provided by Mr. Donaghy was not sufficient to develop further prosecution.” The judge added, “The speculation of [Donaghy’s] counsel in letters to this Court that the information was not pursued because of the NBA’s influence on the government is just that, completely unfounded speculation.”

  Though gratified the judge and others saw through Team Donaghy’s smokescreens, Jimmy Battista just wanted to get on with the process; the earlier he was sentenced, the quicker he could begin serving his time and start a new life. Based on what Battista had seen thus far, it was clear prosecutors and Judge Amon viewed his actions, and those of his co-conspirators, as serious offenses. The former pro gambler once widely and proudly known as The Sheep had good reason to worry about the sentence he would soon receive.

  Footnotes

  The letter also noted Donaghy had “implicated other individuals, including [Jack] Concannon and Peter Ruggieri (a professional gambler like Battista). The government declines to disclose whether it is pursuing, or will be pursuing, charges against these individuals.” Like Ruggieri, it was reported that Concannon was a cooperating government witness.

  The issue of the NBA’s “loss” involves legal arguments, including and especially the issue of Donaghy’s “relevant conduct,” that are not worth exploring here. Interested parties can find a good history of the arguments in the court record spawning from Jimmy Battista’s appeals of restitution.

  Specifically, Lauro wrote, “We strongly object to this letter being filed under seal. We have been advised by the government that it has concluded its investigation into this matter, and therefore there is no reason to fi le this letter under seal. Moreover, the government made no showing whatsoever under established case law that such a communication should be kept from the public. Finally, we respectfully request that there be full transparency in the sentencing process.”

  Lauro argued in the letter that the NBA’s loss should have been $46,240 which, in the context of the U.S. Sentencing Guidelines, would have resulted in 6-level enhancement (compared, respectively, to the Probation Office’s and U.S. Attorney’s Office’s suggested 10-level and 12-level enhancements).

  Unfortunately and yet unsurprisingly, the further one got from hard reporting and from Philadelphia, the more likely one was to see various myths take hold. This seemed to be particularly true in sports media, and even more so in sports talk radio.

  Jack McMahon, Vicki Herr, Christopher Warren, and Joseph Fiorvanti, the attorneys, respectively, for Jimmy Battista, Tommy Martino, Pete Ruggieri, and Jack Concannon, each scoffed at the organized crime allegations made at various times against each man. Fiorvanti, for instance, said that Concannon had “no organized crime connections. He’s just a guy who bet games with Donaghy. All of those guys were about the same age and knew each other.”

  Of Donaghy’s allegations, NBA executive vice president and general counsel Richard Buchanan wrote that the league had “received no information that any referee other than the defendant bet on NBA games or engaged in criminal activity with respect to NBA games.” Buchanan added, “While the NBA has acknowledged that a number of referees periodically engaged in casino gaming and similar social gambling, this conduct amounted at the time only to a violation of NBA rules relating to off-the-court activities of referees, and not to any violation of criminal law.”

  As a victim in the case, the NBA, of course, was entitled to be heard by the court. The league was represented by Lawrence B. Pedowitz and David B. Anders of the law firm of Wachtell, Lipton, Rosen & Katz. The NBA was later asked to offer a more precise figure, and thus on June 20, 2008, submitted a loss figure of $1,395,104.89 to the Court.

  Unsurprisingly, the NBA vehemently denied Donaghy’s allegations. Commissioner David Stern said, “My reaction to Donaghy’s lawyer is that clearly as the date of sentencing gets closer and the things he’s thrown against the wall haven’t stuck, have been given to the FBI, have been investigated, and are baseless.” NBA executive vice president and general counsel Richard Buchanan released a statement, which said, “According to Mr. Donaghy, all of his allegations have previously been made to the FBI and the U.S. Attorney. They are clearly being disclosed now as part of his desperate attempt to lighten the sentence that will be imposed for his criminal conduct.”

  As one sports columnist wrote, which was representative of many other such columns, “conspiracy theorists jumped out of the woodwork to proclaim that the Donaghy case proved their long-standing beliefs that NBA games were always fi xed to produce the best outcomes for the financial benefit of the league.” Beyond league executives, numerous current and former NBA coaches and players came forward to denounce Donaghy’s allegations of game manipulation, etc.

  To further explain why Donaghy’s allegations didn’t merit consideration in his sentencing, the U.S. Attorney’s Office next referenced the opening line of the relevant sentencing provision which reads, “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” (emphasis added). Following an investigation, the Los Angeles County District Attorney’s Office also dismissed Donaghy’s allegations regarding the 2002 Lakers-Kings series, and the United States Attorney’s Office for the Central District of California declined to investigate the matter citing a lack of evidence, among other reasons.

  Following the NBA’s loss assessment submission for approximately $1.4 million, the U.S. Attorney’s Office was asked to revisit the restitution issue, and on July 7, 2008, submitted a revised loss figure of $233,317.

  For example, Lauro wrote, “under the plea bargain approach of the USAO, a cooperator should be punished more severely than those who engage in more serious offenses, such as perjury, extortion, and obstruction of justice.”

  John Lauro thus became one of the few individuals to effectively accuse law enforcement for not sensationalizing one of their cases enough, particularly since terms like “organized crime,” “mob,” “mafia,” “LCN,” “crime family,” etc. weren’t mentioned a single time by the FBI or the Department of Justice in press releases and conferences relating to the case and its three co-conspirators. Any semi-serious follower of organized crime cases is intimately familiar with the Web sites of federal law enforcement agencies, which each contain their own media/press sections. The FBI and U.S. Attorney’s Offices in locales such as the Eastern District of New York (Brooklyn), the Southern District of New York (Manhattan), and the Eastern District of Pennsylvania (Philadelphia) are skilled and experienced at—and notorious for—promoting their efforts and successes in organized crime cases. Indeed, critics commonly argue that federal authorities exaggerate their work in this regard.

  When a cooperating witness provides information to the government, they do so confidentially. This, of course, is because the government might want to use it in other investigations. Thus, if the information becomes public without the government’s permission or consent, it can hurt investigations, security, and success. This is why cooperation agreements, themselves, require co
nfidentiality.

  An Hour to a Little Kid Is a Long Time

  JIMMY BATTISTA FIRST heard the rumors of a federal investigation into his betting activities in the fall of 2006. In truth, he never really knew when the FBI got interested in him, but that was all trivia now as sentencing day arrived. The anxiety that consumed Battista on July 23, 2008, was aggravated by the stress induced by seeing co-conspirator Tommy Martino, his longtime friend who Battista now knew cooperated with the feds against him. Martino was to be sentenced by U.S. District Judge Carol B. Amon right after Battista.