Niagara Gazette

April 3, 2013

Ex-lawyer's sentence delayed

By Rick Pfeiffer
Niagara Gazette

Niagara Gazette — BUFFALO -- Three years after he pleading guilty to embezzling $202,000 from the $2.1 million Hickory Stick Golf Course project of the Seneca Gaming Corp., disbarred Lewiston lawyer Timothy Toohey will have his sentencing in federal court delayed again.

Assistant United States Attorney James P. Kennedy has asked for an eighth postponement of Toohey's sentencing because he is still talking to prosecutors about the case.

In addition to the embezzlement charge, Toohey also pleaded guilty, in January 2010, to filing a false tax return that did not reflect the income he received in the embezzlement scheme.

He was scheduled to be sentenced on April 25 by U.S. District Court Judge Richard Arcara, but Kennedy has asked for another adjournment of sentencing so that Toohey can "complete the cooperation aspects of his plea agreement."

As has been the case in Kennedy’s previous adjournment requests, the specific reasons for the delay were outlined in an affidavit that the prosecutor filed under a court seal. The sealing of the document means it is not available for review by reporters or the public.

The indication that Toohey is still cooperating with prosecutors and investigators is contained in a one-page request for the adjournment, filled by Kennedy on March 25.

Arcara has not yet ruled on the request.

Neither Kennedy, nor Toohey’s defense lawyer, Joel Daniels, have publicly commented on the repeated postponements of his sentencing.

Sources close to the case have told the Gazette that Toohey is cooperating with prosecutors and the FBI in what has been described as a continuing investigation into the land deal that secured the 251-acre plot of land for the Seneca’s golf course. That cooperation is expected to earn the one-time lawyer and Democratic party activist a reduction in his potential prison sentence.

He 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 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 said 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, 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.