By Rick Pfeiffer
Niagara Gazette — BUFFALO — Federal prosecutors say they will ask for a reduced sentence for disbarred Lewiston lawyer Timothy Toohey in connection with the Hickory Stick embezzlement case.
In a court filing obtained by the Gazette, Assistant United States Attorney James P. Kennedy advised U.S. District Court Judge Richard Arcara that he will "move this court for a downward departure from the sentencing guideline range otherwise applicable to (Toohey)." Kennedy said the basis for requesting a reduced sentence was "(Toohey's) substantial assistance in the investigation and prosecution of other persons" connected to the Hickory Stick embezzlement probe.
Toohey pleaded guilty to embezzling $202,000 from the $2.1 million Seneca Gaming Corp. Hickory Stick Golf Course project in January 2010. His sentencing has been delayed multiple times because of his ongoing cooperation with federal law enforcement agents and U.S. attorneys as they moved forward with cases against other defendants charged in the embezzlement scheme.
That cooperation was required as part of a plea deal he made with prosecutors.
In addition to the embezzlement charge, Toohey also pleaded guilty to filing a false tax return that did not reflect the income he received from the embezzlement.
Sources close to the case have told the Gazette that Toohey has provided detailed information to the FBI about the land deal that secured the 251-acre plot of land for the Seneca Gaming Corp.'s golf course in Lewiston.
Without a sentence reduction, Toohey faces a maximum possible penalty of five years in prison, a fine of $250,000 or both on the embezzlement charge. The income tax law violation carries a maximum three-year prison term and a fine of $100,000 or both.
Federal sentencing guidelines, without a reduction, show Toohey could face a prison term of somewhere between 21 and 47 months. Prosecutors have indicated that, as part of any sentence, they will ask for restitution from Toohey to the Seneca Gaming Corp.
When he pleaded guilty, Toohey admitted that he and Bergal Mitchell III, the former vice chairman of the Seneca Gaming Corp., made an “unlawful agreement” that allowed them to skim money from the land deal.
In addition to Toohey’s six-figure haul, federal prosecutors claim Mitchell got $248,000 and his wife, Rachel, got $90,000.
In February 2011, after Toohey's guilty plea, a federal grand jury indicted Mitchell, 37, of Gowanda, on charges of bribery, theft by an officer or employee of a gaming establishment on Indian land, wire fraud, conspiracy and eight counts of money laundering. Mitchell has pleaded not guilty to those charges.
The 18-hole Hickory Stick course, designed by world-renowned golf architect Robert Trent Jones, opened in June 2010.