Writing a Sentence

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

Symington's lenders, Schindler said, "viewed Mr. Symington's financial statement and his personal guarantee as something that was valuable."

Instead, it was worthless.
Schindler said the evidence presented proved that Symington's deceit misled lenders for many years and extended beyond submitting false financial statements. Symington, Schindler said, hid damaging financial information from lenders and attempted to confuse bankers on his financial condition.

Schindler suggests in court filings that Symington conspired with his late accountant, John Yeoman, to conceal Symington's true financial condition from DKB at the same time Yeoman's firm, Coopers & Lybrand, was engaging in illegal activity to win a state contract.

Yeoman admitted in a sworn deposition before his death that he obtained confidential bid information from Symington's deputy chief of staff, George Leckie, in September 1991. That intelligence allowed Coopers & Lybrand to win the Project SLIM contract. About the same time, Yeoman lied to Coopers & Lybrand associates when he told them he had forwarded a Symington financial statement to DKB showing the governor's net worth had plummeted to negative $23 million.

Yeoman never sent Symington's financial statement, preventing DKB from learning that Symington had defaulted on his Esplanade loan covenants, which required that he maintain a net worth of at least $4 million. DKB didn't learn Symington was in default until the following year.

"It was entirely permissible to infer that Symington knew full well that his buddy Yeoman was not going to give it to DKB, so DKB wouldn't find out about it," Schindler tells New Times.

Such sleights-of-hand were typical of Symington's dealings with lenders, Schindler said. Evidence showed Symington understated the value of loans owed to banks while overstating the value of assets. He claimed ownership of $800,000 worth of stocks that were, in fact, held in a spendthrift trust to which he had no direct access. He failed to disclose millions of dollars' worth of loans from friends and family members.

After hammering home the extent of Symington's wrongdoing, Schindler told Strand that Lynam's methodology for determining loss is irrelevant under sentencing guidelines.

"What the defense is asking this court to do is to say that because the property declined in value . . . that that should somehow be removed from the determination of the losses suffered by the institutions," Schindler said.

Schindler said sentencing guidelines state that a defendant is liable for any loss suffered by a lending institution resulting from a decline in value of the collateral.

Using this standard, Schindler said the probation officer correctly determined the losses suffered by DKB and the pension funds totaled nearly $16 million. The jury found Symington guilty of submitting false statements to these lenders.

In addition, Schindler argued that Symington's persistent misconduct caused Citicorp and First Interstate Bank to issue loans that resulted in another $6.1 million in losses.

Whether the losses computed by the probation officer overstate or understate the seriousness of Symington's offenses must be dealt with separately, Schindler said, in the form of a request by the defense for the judge to deviate from sentencing guidelines and impose a lighter sentence.

So far, Symington's lawyers have not formally asked Strand to depart from the sentencing guidelines, although Lynam suggested Strand pursue that course of action at the close of his presentencing-hearing comments.

Schindler concluded his arguments in the same way he wrapped up his closing statements to the jury last August 8.

"It cannot be that Mr. Symington submitted all of these false financial statements to all of these lenders and nothing happened," the prosecutor said. "Common sense suggests that's just not right."

Judge Strand has provided few clues about the sentence Symington will receive, but if his rulings so far in the trial hold true, he will likely split the difference between the probation officer's recommendation of six years in prison and the defense request for probation.

Throughout the trial, Strand has proved to be evenhanded in his decisions while at the same time going out of his way to give the defense every opportunity to present its case.

Strand appeared to be wrestling with the two scenarios presented by Lynam and Schindler during last week's presentence hearing.

Schindler's argument, in a nutshell, is that Symington is guilty of widespread misconduct.

Lynam's position is that Symington's illegal behavior was not the primary reason lenders lost millions of dollars on real estate loans to Symington's partnerships.

One of the few questions Strand asked during the hearing cut to the heart of the matter.

"What do you do when there is culpable conduct on the one hand, but perhaps not causation in the full sense on the other? How do you--how do you make a reasoned judgment in that regard?" Strand asked.

Symington will learn Strand's answer at 1:30 p.m. February 2.

Regardless of any prison time, fines and restitution Strand orders, Symington will likely never admit to his crimes.

Moments after he breaks up his chat with the jurors on the courthouse steps, New Times lobs Symington a question.

"Governor, you thanked them for doing their duty. Do you think they did their duty correctly?"

"I think they did the best they could. Sure. Sure. They did the best they could. Absolutely."

"Do you support their decision, then?"
"No. Of course not. I've always felt I'm innocent. Okay?"

Contact John Dougherty at his online address: jdougherty@newtimes.com

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