Writing a Sentence

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"He wasn't convicted of the other stuff," Lynam says in an interview. "Let's sentence him on what he was convicted of."

Midway through Lynam's deconstructionist maneuvers, prosecutor David Schindler threw up his hands in disgust.

After pursuing the case during more than two years of grand jury proceedings and securing a conviction in a historic, three-month criminal trial where the prosecution presented 35 witnesses and introduced more than 1,300 exhibits, Schindler clearly was agitated over Lynam's effort to trivialize the impact of Symington's actions.

"His argument, Your Honor, really amounts to Mr. Symington did nothing wrong at all in this case," Schindler told Strand.

"[Lynam] ignores all of the evidence of the multiple financial statements. . . . He ignores Mr. Symington's own handwritten notes erasing things, changing numbers, increasing numbers. And he suggests that there wasn't a scheme to defraud more than one financial institution. That just ignores the evidence in this case."

Schindler said Symington misled lenders who believed they were dealing with a multimillionaire capable of meeting his guarantees to repay loans. When the real estate market declined in the late 1980s, Symington defaulted on his real estate loans.

Lenders then counted on Symington's guarantees to help repay the loans but discovered that Symington's financial statement was grossly overstated and Symington, in fact, was insolvent.

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.

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John Dougherty
Contact: John Dougherty