Former Lewiston Attorney Sentenced to Federal Prison for Fraud

BUFFALO, NY—The United States Attorney’s Office announced today that Timothy Toohey, 66, of Lewiston, New York, who was convicted of receiving money stolen from an Indian Tribal Organization and filing a false tax return, was sentenced to 33 months in prison by U.S. District Judge Richard J. Arcara. In addition, the defendant was ordered to pay restitution in the amount of $540,000 to the Seneca Nation of Indians and $62,821 to the Internal Revenue Service.

First Assistant U.S. Attorney James P. Kennedy, Jr., who handled the case, stated that Toohey’s convictions arose as a result of the disbarred attorney’s involvement in an effort to build a golf course in the Town of Lewiston. According to Kennedy, in April of 2002, Old Creek Development (OCD) was formed as a Limited Liability Corporation (LLC) by attorney Michael Dowd. Dowd was partners in OCD with two other individuals who together owned vacant land in the Town of Lewiston, and the primary reason that the LLC was formed was to develop a golf course on that land. While OCD initially sought to enter into an agreement with the Town of Lewiston to develop a municipal golf course, that effort did not succeed. At that point, the defendant decided to become involved by offering to bring together OCD (as seller) and the Seneca Nation of Indians (SNI) (as the purchaser) of the golf course site. To that end, Toohey contacted, inter alia, both Dowd (who was acting on behalf of OCD) and Bergal Mitchell, who was then the Vice Chairman of the Seneca Gaming Corporation (SGC) Board of Directors. The SGC is an entity which is wholly owned by the SNI. On February 19, 2005, the Tribal Council of the SNI passed a resolution related to the purchase of the land in Lewiston for a golf course. That resolution authorized the Seneca Niagara Falls Gaming Corporation (SNFGC), an entity wholly owned by the SGC, to acquire the land for the golf course for a purchase price which was "not to exceed $2.1 million."

In pleading guilty, Toohey admitted that during the course of the negotiations leading up to the sale of the property from OCD to the SNFGC, he and Bergal Mitchell entered into an unlawful agreement whereby each would, unbeknownst to SNI, receive a portion of the sale proceeds received by OCD from SNI. The defendant further admitted that both he and Bergal Mitchell undertook affirmative measures to conceal from members of the SNI Tribal Council, SGC and/or the SNFGC their interest in the transaction, including the fact that they were each personally going to receive a portion the sale proceeds.

According to Kennedy, the investigation revealed that after paying its expenses, OCD, on February 15, 2006, paid a total of roughly $1,400,000 for the six total parcels it obtained from the two property owners and the Town of Lewiston. On that same day, OCD conveyed title to the six parcels it had obtained to the SNFGC in exchange for $2,100,000. Of the sales proceeds received by OCD, Toohey, during 2006, received approximately $202,000, while Bergal Mitchell received approximately $248,000. In addition, Mitchell’s wife Rachel received an additional $90,000. The tax conviction against Toohey resulted from his failure to report the $202,000 he received in the transaction as income on his 2006 tax return.

Immediately prior to sentencing Toohey, Judge Arcara set a date of June 17, 2014, for trial of the pending Indictment against Mitchell for his role in the transaction.

The conviction was the culmination of an investigation on the part of special agents of the Federal Bureau of Investigation, under the direction of Brian P. Boetig, Special Agent in Charge, and the Internal Revenue Service, Criminal Investigation Division, under the direction of Toni M. Weirauch, Special Agent in Charge.