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MAY 05 - MAY 12, 2015

Jury Finds Dowd, Toohey, Mitchell Harmless in Hickory Stick Land Case

By Mike Hudson

May 05, 2015

The Boos’ land wound up as the Hickory Stick Golf Course. Dowd was accused of double dealing. The jury thought otherwise.
The jury finds no cause of action against Lewiston attorney Michael Dowd in the civil case brought against him by Charles and Stephanie Boos.
Justice Mark Montour was the trial judge.
Paul Becker represented Boos.
Buffalo attorney Brian Melber represented Dowd . Local attorneys commented to the Reporter that the jury returned a verdict in what may have been Niagara County record time.
Tim Toohey, a former attorney, was sentenced to 33 months in federal prison for his role in the Boos land sale.

A ten year old criminal case that involved the Seneca Nation of Indians and Lewiston attorneys Michael Dowd and Timothy Toohey turned into a civil lawsuit that was dismissed by a jury in state Supreme Court last week.

The case began in 2011 and saw at least three State Supreme Court justices issue rulings, Richard Kloch, Catherine Nugent Panepinto and Mark A. Montour, who presided over the six day trial.

The jury took less than 30 minutes to return with a verdict of "no cause of action", finding Dowd not guilty of fraud, breach of contract and related charges brought by the plaintiffs in the case, Charles and Stephanie Boos of Lewiston.

Since the Boos' case was built around Dowd's culpability, the jury, it seemed, had little choice but to find his co-defendants, Bergal Mitchell III, Rachel Mitchell and Toohey not guilty as well, despite the fact that both Bergal Mitchell and Toohey were criminally indicted in a federal land fraud case that saw land formerly owned by the Boos family sold to the Senecas, who then built the Seneca Hickory Stick Golf Course on it.

Dowd, who at first represented himself, later retained Buffalo attorney Brian M. Melber of the law firm Personius and Melber, who was the lead attorney for the defense during the trial.

Toohey, who was, during much of the proceedings, an inmate at the Federal Correctional Institution in Morgan Town, West Virginia, apparently represented himself.

The Mitchells were represented by Niagara Falls attorney John P. Bartolomei.

John Feroletto and Paul Becker of Feroletto Law represented the plaintiffs.

In 2014, Toohey was sentenced to 33 months in prison for illegally profiting on the deal at the expense of the Senecas. Mitchell is still awaiting trial in the case. Dowd was listed as a government witness in the Toohey case and is expected to testify at Mitchell's trial as well.

The complex 2006 land deal that led to both the criminal case and the civil suit involved a $1.2 million transaction that saw 251 aces of Lewiston real estate owned by Boos, the Town of Lewiston and Lewiston resident Joseph Deck transferred to the Senecas for $2.1 million.

Toohey was charged with embezzling $202,000 of the $900,000 windfall. Federal prosecutors allege Mitchell took $248,000 and his wife Rachel got another $90,000.

In pleading guilty, Toohey admitted that during the course of the negotiations leading up to the sale of the property, he and Bergal Mitchell entered into an unlawful agreement whereby each would, unbeknownst to the Senecas, receive a portion of the proceeds from the sale. Toohey further admitted that both he and Bergal Mitchell concealed this from members of the Seneca Tribal Council.

Dowd's position in the criminal case remained murky. According to an FBI affidavit filed in 2010, Dowd was at the center of the deal, and wrote the final disbursement checks after the land was sold to the Senecas.

"Approximately two days before the land sale closed in February 2006, Dowd told Charles Boos the (Seneca Nation of Indians) was willing to pay $1.2 million ... for the land," FBI Agent Robert Gross wrote in the affidavit. "The day after the land sale closed, Charles Boos learned from a family member that the (Seneca Nation of Indians) paid ... $2.1 million for the land."

Boos, who was supposed to have received 60 percent of the sale price, then confronted Dowd about the discrepancy, and Dowd allegedly told him the Senecas did indeed pay $2.1 million, but that "(Seneca President) Barry Snyder needed money for votes for his re-election."

Dowd allegedly said the cost of this previously unmentioned expense amounted to $300 a vote, according to the affidavit.

Records show Dowd received approximately $1.86 million for the land sale on Feb. 16, and the next day did a wire transfer for $248,000 to Barry Halftown, a cigarette dealer in Salamanca who, it turns out, is related to Bergal Mitchell. Also on that day, Dowd transferred $90,000 to Rachel Mitchell's account.

A final wire transfer, this one for $202,000 to attorney Mark Gabriele was made on Feb. 17. Gabriele received the money as an attorney for TERO Inc., a consulting firm owned by Toohey.

Gross wrote that there was "no known legitimate reason" for Halftown, Rachel Mitchell or Gabriele to have received any money from the land sale.

Neither Dowd nor Snyder was ever mentioned publicly again in connection with the investigation.

The specifics of the Boos lawsuit were simple enough. It alleged that Dowd, who was supposed to be representing the Boos family, was actually acting in concert with Toohey and Mitchell to enrich themselves at the landowners' expense. The disbursements made to Toohey, Halftown, Mitchell, his wife and Gabriel amounted to only $740,000 of the $900,000 total.

Dowd was never charged with a crime, much less convicted of one. This overarching fact is apparently what the six member jury took into the deliberation room with them.

And if Dowd had committed no crime, how could Toohey and the other defendants in the lawsuit have acted as his accomplices. What exactly were they "aiding and abetting"?

This was the argument of prominent Niagara Falls attorney John Bartolomei, who represented the Mitchells in the lawsuit. In his 76-page motion to dismiss the charges against his clients, he said the plaintiffs simply had not made their case.

Judge Montour denied the motion, but the jury ultimately agreed with Bartolomei's arguments.

Cutting through the tangled web of personalities, charges, backdoor dealing and missing money, they returned their verdict in record time.

The par 72 Seneca Hickory Stick Golf Course opened in 2010 with great fanfare in part because the Seneca Hickory Stick Golf Course was designed by noted golf course designer Robert Trent Jones.

This very afternoon, duffers are enjoying the peaceful Lewiston countryside playing a course ranked the 12th best in the entire state of New York by Golf magazine, and which also named Seneca Hickory Stick as the sixth best new public course in the entire nation.

Walking down the fairway in the May sunshine, they might be forgiven for not thinking about the dark deal that gave birth to the course, or the continuing litigation that deal has engendered.

The jury's verdict will do nothing to assuage the feeling of Charles and Stephanie Boos that they were swindled, nor will it lessen by even one day the amount of time Tim Toohey must serve.

Like so many other things on the Niagara Frontier, much mystery remains.





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