Listen Community Services Executive Director Kyle Fisher speaks with volunteer servers about a change in how the annual Lebanon Christmas Day Dinner was to be presented to those in attendance in the basement of Sacred Heart Church in Lebanon, NH, on Dec. 25, 2018. (Photo by Geoff Hansen, Valley News)
Federal prosecutors want the former head of Listen Community Services to serve 26 months in prison for embezzling money from the Upper Valley nonprofit, while the defense attorney is seeking a 12-month sentence.
Neither side disputes the facts of the crime, but they cite different factors in support of their suggested penalties.
Kyle Fisher, the former Listen executive director, was due to appear in federal court in Concord on Wednesday afternoon to face sentencing after he pleaded guilty in February to a single count of siphoning money from Listen’s bank accounts that he then spent on gambling trips to a Massachusetts casino.
The single count of wire fraud to which Fisher pleaded guilty is punishable by up to 20 years in prison, three years supervised release and a maximum fine of $250,000, or twice the gross gain or loss, according to federal statute.
Nonetheless, the 26 months sought by prosecutors is near the upper end of prison time under guidelines the court is supposed to follow when imposing such sentences.
Those factors include the nature and circumstances of the crime, the history of the defendant and ensuring the sentence does not vary widely from those imposed in similar cases.
“This is a serious white-collar offense and demands a commensurate sentence … (26 months) would not only deter prospective wrongdoers but also promote public confidence that the justice system will adequately punish fraudsters like the defendant,” prosecutors wrote in their six-page sentencing memorandum.
But Fisher’s defense attorney, Charles Keefe, of Nashua, argued in his 20-page sentencing memorandum seeking a 12-month sentence that Fisher did not embezzle the money in order to “live a lavish lifestyle.” Instead, he said Fisher suffers from a gambling addiction and bipolar disorder that compelled him to commit the crime despite knowing it was wrong, his attorney said.
“While his heart and mind told him it was wrong, (Fisher’s) addiction drove him into a scheme of taking money and then trying to cover his tracks … Good people do bad things and someone who is bipolar with a gambling addiction is such a person in this case,” Keefe wrote.
Fisher, 43, is currently residing in North Carolina, and at his plea hearing earlier this year asked the court to allow him to serve his sentence at a federal facility in Butner, N.C., about a half-hour from his home.
Fisher, formerly a resident of Grantham, was initially indicted in May 2023 on four counts of wire fraud alleging that he stole a total of about $240,000 from Listen over 19 months in 2021 and 2022. Fisher had been placed on leave without explanation from Listen the previous September and resigned the following February, three months before he was indicted in federal court in New Hampshire.
“We’re grateful to U.S. Attorney for the District of New Hampshire and the FBI investigative teams for their diligence on our behalf,” Dick Green, secretary of Listen’s board, said via email on Tuesday.
The dollar amount cited by prosecutors was the stipulated amount reached between the government and defense.
Green noted Listen’s records indicated that the stolen funds amounted to a total of nearly $282,000, of which about $250,000 was covered by insurance.
Both the prosecution and defense’s sentencing memorandums provided new details about Fisher’s embezzlement.
Prosecutors said that compounding the near quarter-million dollars embezzled from Listen was an additional $78,000 it had to spend on auditing, legal fees and other costs associated with the investigation.
Meanwhile, Fisher’s gambling addiction was a $4,000-a-week habit during the time he was living in New Hampshire and working for Listen, Fisher’s defense attorney disclosed in his sentencing memorandum. During a prior marriage, Fisher had lost $150,000 through gambling, the attorney said.
Fisher joined Listen as a volunteer in 2013 and was appointed executive director in 2016.
According to the indictment, Fisher used his access to Listen’s PayPal account, which was set up to collect donations, to transfer funds into his personal bank account at Mascoma Bank. Then he transferred money into his casino account.
He also “created fake invoices and receipts and altered the charity’s accounting records” in an effort to cover his tracks, the government said.
Fisher had been previously convicted of embezzlement. In 2012, the year prior to arriving in the Upper Valley, Fisher was charged and convicted of embezzling less than $200 from the University of Michigan, where he was employed, state court records showed.
“While the (Listen) offense is magnitudes more serious, together they show that the defendant has not rectified his fraudulent behavior” and therefore demonstrate should not be eligible “for a substantial downward variance” in his sentence, prosecutors contend.
But Fisher’s defense attorney says his client has “accepted full responsibility for his crime” and is deserving of a more lenient sentence than the one prosecutors are seeking.
Fisher “did not obtain the subject funds in order to become wealth(y) or live a lavish lifestyle. He did so due to a mental health disorder … He lives with an extreme remorse for the community trust he violated and he feels a nearly unbearable level of shame,” Keefe wrote.
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