Writing a Sentence

Fife Symington must live with six felony convictions; where he will live with them is still up in the air

Former Arizona governor J. Fife Symington III has just escaped a crush of reporters at the federal courthouse and is moving toward his car when he spies three of the jurors who found him guilty.

It is January 20, and Symington is leaving a daylong presentencing hearing. The jurors happen to be there by coincidence to be photographed by New Times.

Symington turns, retraces his steps and approaches the surprised jurors, who greet him cordially.

Surrounded by a bank of television cameras, Symington, ever the politician, seizes the opportunity to polish his tarnished image.

"I wish you all well," Symington says, shaking the hands of Janice Pettes, Harold Thompson and Bob Bamond as though he were stumping for a third term. "That was a tough job.

"Sorry you had to sit through it for 14 weeks. It will be with us for the rest of our lives. But, anyway, thank you for doing your duty. Okay. Good luck to you."

Symington turns and walks back down First Avenue, away from the courthouse where his political career--and, perhaps, his freedom--crashed on September 3, after he was convicted on seven counts of bank and wire fraud.

He rejoins his chief legal adviser, John Dowd. Feeling at ease with the burly lawyer who has represented him during seven years of legal struggles, Symington comments on the unexpected juror encounter he had initiated.

Apparently, Symington hadn't felt all that gracious.
"That's a hell of a position to be put in, isn't it?" Symington complains to Dowd.

"Yeah," Dowd mumbles.
Symington's insincerity captures the essense of his desperate strategy to avoid prison: Image is everything.

Symington is to be sentenced February 2.
In preparation for that climactic event, Symington's attorneys are going to lengths to divert attention from Symington's felonious aura. They are boldly claiming that despite Symington's conviction for defrauding three lenders, his actions really harmed no one.

"There was no loss caused by Fife," assistant defense attorney Terry Lynam says. "The lenders suffered losses for other reasons."

Under the defense theory, since no one lost any money because of Symington crimes, the 52-year-old former developer should receive probation.

Federal prosecutor David Schindler calls the defense claims "preposterous." He has asked U.S. District Court Judge Roger B. Strand to sentence Symington to 10 years in prison. Schindler points to a U.S. Probation Office presentence report that concludes Symington's fraud cost lenders nearly $23 million.

The Probation Office itself recommends Strand sentence Symington to a stiff, six and a half to eight years in prison.

Strand's discretion is limited under federal sentencing guidelines. He can, however, depart from the Probation Office recommendation and impose a lighter sentence, particularly if he finds that Symington's actions caused little financial harm.

Determining financial loss, in turn, will depend on whether Strand believes Symington's crimes were simply technical mistakes committed by a busy, error-prone man, or were part of a devious, long-term conspiracy to defraud millions of dollars from lenders.

In arguing for leniency during the January 20 hearing, Terry Lynam made the best defense presentation of the trial. He deftly elaborated a score of arguments designed to keep Symington out of prison.

Lynam was encouraged when Strand announced at the beginning of the hearing that he was tossing out one of the jury's guilty verdicts, reducing the number of guilty counts to six.

Lynam recast Symington's image from that of a felon who submitted more than a dozen grossly misleading financial statements to lenders over a six-year period to one of an honest developer whose minor mistakes caused no financial loss.

To accomplish this, Lynam grouped the guilty charges into three distinct groups related to the lenders impacted: one count related to Valley National Bank, four counts tied to Dai-Ichi Kangyo Bank and one count linked to a consortium of union pension funds.

Lynam argued that each set of charges was isolated from each other and therefore not part of a conspiracy. Lynam narrowly focused the impact each set of charges had on any possible loss sustained by lenders while maintaining that the lenders lost no money.

Lynam's tactic was akin to cutting an apple into so many pieces that there is little left to eat.

The first lender Lynam addressed was Valley National Bank (now Bank One), whose chairman, Michael Welborn, provided the defense a powerful weapon.

In a letter to the Probation Office, Welborn states that Bank One is not seeking restitution from Symington for failing to repay a $780,000 loan. The jury found Symington guilty of submitting a false financial statement to Valley National on May 14, 1991, in order to get an extension of the loan.

Lynam told the court that Welborn's letter states "the bank is not satisfied that there was any reliance on this financial statement" when the loan was extended.

The letter opened the door for Lynam to argue that Bank One would have extended the loan to Symington no matter what the financial statement said because the bank knew Symington was in deep financial trouble and that Symington had made earlier payments to reduce the loan.

The jury, Lynam reminded Strand, was deadlocked on whether Symington submitted a false financial statement to the bank when he first obtained the loan. Therefore, Lynam said, there is no proof that Symington's May 14, 1991, financial statement contributed in any way to the $780,000 loss.

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