To hear federal prosecutors tell it, Louis P. Ciminelli's criminal conviction should earn him a "substantial term of imprisonment" – not quite the nine years to 11 1/4 years the sentencing guidelines suggest, but substantial nevertheless.
The Buffalo developer's top lawyer, however, says Ciminelli deserves a lesser sentence for three reasons: the weakness of the prosecutors' case, all the good Ciminelli has done in his hometown and the dire prognosis he faces as he battles a cancer that's expected to take his life in no more than eight years.
The battle over Ciminelli's sentence is playing out in Manhattan in court filings before U.S. District Court Judge Valerie E. Caproni – who, on Monday, delayed his sentencing eight days, from this Thursday to Dec. 7.
Caproni did not explain why she delayed sentencing Ciminelli on the wire fraud and conspiracy charges he was convicted of in July, which stemmed from a bid-rigging scheme that steered state "Buffalo Billion" money to Ciminelli's company.
In a court order issued late Tuesday, Caproni said she had not made any final decisions about the sentences in the case.
"Those decisions ... will not be made until after the Court has heard from the government and the defendants at their respective sentencing proceedings," she said.
Caproni's decision to delay Ciminelli's sentencing came shortly after lawyer Paul Shechtman's plea for leniency, a six-page treatise that focused mostly on what the lawyer saw as flaws in the government's case.
Prosecutors spelled out their argument for a substantial prison sentence for Ciminelli in a court filing a week earlier.
"This case represents an important opportunity to deter crimes committed by those in the private sector who believe that they can commit crimes of fraud and corruption with impunity," wrote Geoffrey S. Berman, U.S. attorney for the Southern District of New York.
Berman did not specify what sort of prison term he thought Ciminelli deserves, but the prosecutor indicated the developer wasn't as responsible for the conspiracy that benefited his company as Alain Kaloyeros, the former SUNY Polytechnic Institute leader who was convicted on the same charges.
"The government views Ciminelli as less culpable than Kaloyeros," Berman wrote. "Kaloyeros, unlike Ciminelli, was a state employee granted enormous discretion and trust by the governor of New York. The evidence at trial also shows that Kaloyeros was more proactive than his co-defendants in perpetrating the fraud."
But that doesn't mean Ciminelli should get off easy, Berman added.
"The defendant’s conduct, and its impact on direct and indirect victims, mandates a substantial term of imprisonment," the U.S. attorney wrote.
Prosecutors argued in the trial that Ciminelli and Kaloyeros rigged the bidding process on Buffalo's giant RiverBend industrial project so that Ciminelli's company got the business. Kaloyeros' sentencing is scheduled to take place in Manhattan on Dec. 11.
The $750 million RiverBend deal allowed Ciminelli's company, LPCiminelli, to get a 3.5 percent management fee worth approximately $26.25 million.
Prosecutors did not attempt to specify how much of LPCiminelli's gain was fraudulent, but they argued the company improperly benefited from the bid-rigging.
"Conspiring to rig (a bid) to prevent other companies from fairly competing only makes sense if the goal is to ensure that a better or lower price competitor cannot win the bidding," Berman wrote.
But Shechtman, Ciminelli's lawyer, wrote that the government's argument doesn't make sense.
For one thing, for bids on every part of the Buffalo Billion project, "the winner was selected on qualifications, not price," Shechtman wrote.
And while prosecutors called LPCiminelli's 3.5 percent management fee unreasonably high, Shechtman said the company deserved more money just because the RiverBend venture entailed more risk than many projects.
In addition, Shechtman said government prosecutors undercut their own case for a stiff sentence by not specifying the kind of financial damages the scheme between Ciminelli and Kaloyeros caused.
The government "has not made any effort to do so here," Shechtman wrote.
Shechtman's letter to the judge on Monday was the latest attempt to sway her to go easy on Ciminelli.
Dozens of people have written to the judge to plea for leniency on Ciminelli's case. Among them are former Buffalo Mayor Anthony M. Masiello, Buffalo Philharmonic Orchestra music director JoAnn Falletta and Alphonso O'Neil-White, former head of BlueCross, BlueShield of Western New York.
Many people cited Ciminelli's good works in Buffalo, and so did Shechtman in his latest submission to the judge.
"Years before his company earned a dollar from the RiverBend project, Mr. Ciminelli was donating millions to Buffalo’s cultural and educational institutions," Ciminelli's lawyer wrote. "Just as importantly, he was giving his time and wise counsel to them. Would that all of us were as civic-minded as he has been."
Shechtman also chided prosecutors for not even considering Ciminelli's health in their sentencing recommendations. Ciminelli suffers from a bone marrow cancer called multiple myeloma and, according to a leading doctor Shechtman cited, faces a life expectancy of eight years or less.
"Surely, that is a relevant fact for a sentencing judge to consider," Shechtman wrote.