Successful Durham appeal unlikely, outside lawyers say

The co-owners of Fair Finance Co. who were sentenced Friday on federal fraud charges plan to appeal their convictions, lawyers for the two men say.

But a couple of veteran criminal defense attorneys who tracked the trial of Tim Durham and James Cochran, along with company chief financial officer Rick Snow, say a successful appeal is an extreme long shot.

“If I was involved in that appeal, the last thing that I would do is overstate any hope to the family,” Indianapolis lawyer Robert Hammerle said.
 
Durham received a 50-year sentence and Cochran a 25-year sentence from Judge Jane Magnus-Stinson for defrauding Ohio investors of $250 million. Snow was sentenced to 10 years. Snow’s lawyer, Jeffrey Baldwin, couldn't be reached Monday morning to see if he plans an appeal.

A federal jury in June found Durham guilty on all 12 felony fraud charges stemming from the collapse of Akron, Ohio-based Fair. Durham co-owned the firm with Cochran, who was convicted of eight of 12 felony charges. Snow was convicted on five of 12 counts.

The lengths of their sentences are much shorter than what the government had recommended — 225 years for Durham, 145 years for Cochran and 85 years for Snow.

Following Durham’s sentencing Friday, his lawyer, John Tompkins, said he planned to appeal the conviction to the 7th Circuit U.S. Court of Appeals in Chicago. A notice of appeal must be filed within 14 days of sentencing.

Tompkins didn’t return a phone call Monday morning seeking further comment on what legal argument he might use to get Durham’s conviction reversed.

But Friday, he said, “anything that is likely to result in dying in prison can’t be described as a good result.”

Reached by phone Monday morning, Cochran’s lawyer, Joseph Cleary, said he, too, planned to appeal his client’s conviction, though he declined to specify on what grounds.

Cleary did not represent Cochran during his conviction and was appointed as a public defender in late September.

“What the issues in the appeal will be, at this point, I can’t tell you,” Cleary said.

Marty Solomon, a veteran criminal defense lawyer in Indianapolis who has argued several cases in front of 7th Circuit judges, said lawyers mostly cite lack of evidence or judicial error when appealing.

But in the case of Durham and Cochran, the chances of success are slim, said Solomon, who described the evidence as “powerful” and “overwhelming.”

“I would say that Durham and his co-defendants probably have a better chance of hitting a $500 million lottery than succeeding on appeal,” he said.   

Barring successful appeals, Durham, 50, likely will spend the rest of his life in prison and Cochran, 57, most of his remaining years.

Unlike state prisoners, federal inmates must serve 85 percent of their sentences. Durham would need to live to 93 to survive his sentence, and Cochran, to 78. Snow is 49 years old and could be out in 8-1/2 years.

Solomon said Magnus-Stinson likely gave Durham 50 years — basically a life sentence — instead of the recommended 225 years to avoid an appeal on the sentence. Most all federal appeals argue the conviction and not the sentence, he said.

“I never thought of her as a lenient judge,” said Solomon, who appeared before her during her time as a criminal court judge in Marion Superior Court. “So I knew right away that she would be strict with Durham.”

Federal prosecutors sought the stiffer sentences, taking into account 5,122 victims and a loss of $250 million, to punish Durham and Cochran for operating Fair as a Ponzi scheme.

Before his sentencing, Durham said he read many of the letters from victims and regretted that the company failed. He also defended Cochran and Snow but failed to offer an apology.

Cochran, though, sobbed while telling investors how remorseful he was over their losses.

“One thing I know for sure is that I regret what happened to all the investors,” he said. “I’m heartbroken. I never intended for this to happen.”

U.S. Attorney Joseph Hogsett called Durham’s 50-year sentence “a significant price that he deserves.”

The victims "lost their peace of mind, their trust in others, and their faith in goodness and mercy," Hogsett said in a prepared statement. "These are things they will never get back. What Tim Durham and his associates destroyed through self-indulgence was irreplaceable, and those people may never be made whole."

All of IBJ's coverage of Tim Durham and Fair Finance can be found here. The IBJ is a sister publication of Indiana Lawyer.