SAN ANTONIO – A federal judge sentenced NBA legend Tim Duncan's former financial advisor to four years in prison and ordered him to pay $7.5 million in restitution after berating him for abusing his client's trust and not properly owning up to his misdeeds.
Judge Fred Biery on Tuesday also ordered advisor Charles Augustus Banks IV of Atlanta to undergo three years of supervised probation after serving his prison term, which could have been as long as 20 years.
For much of the sentencing hearing, it seemed the judge was inclined to impose a longer prison term. By writing more than 100 letters, Banks' relatives and friends had tried to persuade Biery to show Banks leniency.
Their campaign backfired.
Biery said the letters gave him insight into what people in his world think about Banks, who pleaded guilty in April to defrauding his former longtime client, the former San Antonio Spurs power forward. In short, the judge said, many of them believe the charges against Banks are "much ado about nothing."
Biery left no doubt Monday that he had a different opinion.
PLATOON OF NBA STARS
A standing room-only crowd of about 70 – including Duncan and three other towering NBA greats – filled the courtroom. Kevin Garnett, who played for 21 seasons in the NBA and remains one of Banks' clients, sat in the same row as Banks' wife and family. Two of Duncan's former Spurs teammates, Sean Elliott and Manu Ginóbili, prompted murmurs when they slipped in a few minutes late to sit near Duncan.
Nearly two dozen people came to support Banks, 49, a married father of three who lives in Atlanta and who’s also well known in the wine industry for buying up wineries like Mayacamas, Wind Gap and Qupé. A tall and lean former athlete himself, Banks wore a gray suit and spectacles. His darkly tanned wife Ali was clad in a bright white outfit more suited to a beach vacation than a courtroom.
Biery expressed umbrage repeatedly that so many in Banks' camp appeared either unaware or unconcerned about the harms Banks caused. Shortly after the proceedings got underway, he held up a letter Banks' mother had sent him and waved it from the bench.
"I understand that mothers think their sons can do no wrong, but it concerns me … that she's very disappointed the way the legal system works … as it was never proven that there were any damages or anything wrong done to Mr. Duncan," Biery said, paraphrasing its contents.
"Now, where does she get that idea?" he asked Banks.
"I did not ask my mother to write a letter, your honor," Banks said in a low voice.
"Well, I want to make sure that, in front of all these folks here, that if you want to withdraw your plea, I certainly have the power to let you do that and we'll let your mother come and watch the government prove not only this count, but prove everything else against you," the judge continued.
"Now, do you want to do that?"
"No, sir," replied Banks, who avoided a long trial by pleading guilty to wire fraud this spring for lying to Duncan about the terms of a $6 million loan guarantee he persuaded him to sign in 2012.
"Are you reconfirming that you committed a federal felony?" the judge pressed.
LIKE AN 'ATM MACHINE'
The loan guarantee was for a Colorado sport merchandising company Banks ran called Gameday Entertainment. Banks had already persuaded Duncan to loan Gameday $7.5 million.
After Gameday received the money, Banks directed the company to send some of it to him, a Gameday executive testified Monday. Over the course of about a dozen transactions, Banks or entities he controlled took $5.39 million, according to Gameday's controller, Justin Mangnall.
Banks used Gameday like an “ATM machine,” another witness testified.
Nonetheless, shortly after Duncan loaned the $7.5 million, Banks told his client in a September 2013 email: "I have never received any commissions or payments for putting you in deals," according to federal prosecutors who presented the correspondence as evidence.
"That's a lie," Biery announced to the courtroom when presented with evidence of this sort throughout the proceeding, or "That's another lie."
It was all but impossible for Duncan and his legal team to determine the full scope of Banks' transgressions, given that neither he, nor people at the companies in which Duncan had invested at Banks' direction, provided sufficient documentation of where the money had gone, Duncan's financial consultant, Wendy Kowalik, told Biery.
Witnesses for Banks insisted that they had provided all the necessary documents.
As if to settle the matter, the judge turned to a member of the probation staff who work with defendants after guilty pleas. Brier asked one woman if Banks and his team had been more or less forthcoming with information than other defendants.
Less forthcoming, she said.
Biery seemed determine to impress upon Banks the fact that, due to his guilty plea, he's got a new identity to reckon with.
"No one in your family has ever been a federal felon," the judge told him at the opening of the proceeding. Banks conceded the fact.
A HIGHER STANDARD
A few minutes earlier, everyone who had come early to watch the showdown between Banks and Duncan witnessed Biery say the same thing to a convicted methamphetamine dealer. That man, sentenced to 10 years, left the courtroom the same way he entered: in shackles. Biery compared Banks to the convict.
While the drug dealer had been doing well on income of about $4,000 a month before he got busted, Biery said, "You and your family spend $50,000 a month and, of course, you grew up in a wealthy family." He added, "People like you ought to be held to a higher standard because you know better."
Biery seemed irritated by the idea that Banks might think differently. The former advisor minimized his guilty plea in a statement he gave to the wine industry publication Drinks Business in April.
"Despite defending himself and strenuously denying the charges put forth, Charles will be entering a plea to one count of wire fraud," according to the statement, which adds that Banks believes the matter constituted "a civil case gone wrong."
‘POSTER CHILD FOR THE DUMB ATHLETE’
In a victim's statement Duncan's lawyer read in court, the retired basketball star told a very different story.
"I'm the poster child for the dumb athlete whose financial advisor took his money. I hate it and am embarrassed by it, more than you can imagine," Duncan said in the statement. Even more than that, "I hate the idea of Charles being able to do this to someone else.”
Upon hearing that Banks had said he believed he should be given probation or, at most, a six-month sentence, Duncan said he began to fear that "he will be given a sentence that will allow him to go out into the world and tell everyone, as he has continued to do since his guilty plea, that he did not do anything wrong and he proves it by having very little to no jail time. I respectfully ask you: Don't do that," Duncan said to Biery in his statement.
Duncan didn’t stop there.
"I promise you that, if he has any excuse to get back into this line of business, he will be out hustling and doing the same thing to others," Duncan said, and continued: "Judge, please do not send a message to guys like Banks that nothing really bad happens to you if it is the first time you get caught. You and I both know that if some underprivileged kid from a rough neighborhood stole a lot less, they would be going to jail for many years. I know Banks has a lot of other peoples' money that he thinks he can use to lawyer his way to a slap on the wrist. I just want to ensure … to make it clear to anyone looking to take advantage of trusting athletes that this is not acceptable and will not be tolerated."
After Duncan's lawyer had finished reading the statement, Biery said Duncan's sense that Banks sees himself relatively blameless "is borne out by the letters written on his behalf that a whole number of these people think that, in Shakespearean terms, that this was much ado about nothing."
DUNCAN ADDRESSES BANKS
The judge then called Banks back to the podium. As Duncan sat in the witness chair, Biery told him, "You have your opportunity to say what you want to Mr. Banks, his family, his supporters, whatever you want to say."
Fumbling, Duncan said he hadn't realized he'd be asked to address Banks directly.
"You don't think it was your fault?" Biery prompted Duncan.
"No, I don't think it was my fault," Duncan replied immediately.
The hoops hero looked at Banks and pushed forward: "I’m disappointed at where we are right now. I told you this when we sat in front of each other and tried to get this done in a private setting. … I wanted you to own up to what you did, pay up and move on. And from that point to this point, all I've learned and all I've seen is you are not willing to do that. You don't want to do that. So we're here and we're dealing with this in front of a judge."
Banks turned tearful the next day before the sentence was pronounced, telling the judge, "I ask you to have mercy on me." He also turned to face Duncan, his longtime friend and former client, and told him, "I'm sorry I abused your trust. I never meant to hurt you and I sincerely apologize." Biery then delivered Banks' punishment.