Niagara Gazette

October 8, 2012

Toohey gets another delay in Hickory Stick embezzlement case

By Rick Pfeiffer
Niagara Gazette

Niagara Gazette — BUFFALO — He is still talking to federal prosecutors, and as long as he does, disbarred Lewiston lawyer Timothy Toohey will apparently stay out of prison.

For the seventh time, since Toohey pleaded guilty, in January 2010, to embezzling $202,000 from the $2.1 million Hickory Stick Golf Course project of the Seneca Gaming Corp., his sentencing in U.S. District Court in Buffalo has been postponed.

He has also pleaded guilty to a charge of filing a false tax return that did not reflect the income he received in the embezzlement scheme.

Toohey was scheduled to be sentenced on Oct. 25 by District Court Judge Richard Arcara, but the proceeding has now been put off until April 25.

The postponement at the request of Assistant United States Attorney James P. Kennedy.

As was the case with Kennedy’s six previous adjournment requests, the reasons for the delay were outlined in an affidavit from the prosecutor that has been sealed by the court and is not available for review by reporters or the public.

Neither Kennedy nor Toohey’s defense lawyer, Joel Daniels, have 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 their continuing investigation into the land deal that secured the 251-acre plot of land for the Seneca’s golf course. That cooperation could earn the one-time lawyer and Democratic party activist a reduction in his potential sentence in the case.

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.