Oakhill prosecutors: Yavorcik motion to dismiss factually wrong
CLEVELAND
Prosecutors in the Oakhill Renaissance Place criminal conspiracy case argue a motion from the attorney representing Martin Yavorcik, one of the three defendants, to dismiss the indictment is factually wrong.
In a Friday filing, Christopher Schroeder, a Cuyahoga County assistant prosecutor, disputes a claim by Mark Lavelle, Yavorcik’s attorney, in a Jan. 5 court filing that the Ohio Elections Commission has “exclusive initial jurisdiction of alleged election law violations.” Prosecutors asked Judge Janet R. Burnside of Cuyahoga County Common Pleas Court, who is overseeing the Oakhill case, to reject the motion.
Included in Schroeder’s filing is a three-page affidavit from Philip C. Richter, OEC’s executive director and staff attorney, who wrote: “It is my position that a prosecutor is permitted to seek and obtain an indictment,” and that “there is no requirement that the prosecutor” in Yavorcik’s case “was required to present any of the allegations against Mr. Yavorcik before the Ohio Elections Commission prior to seeking and/or obtaining an indictment.”
In a Jan. 5 motion, Lavelle asked Judge Burnside to drop the 27-count indictment against Yavorcik, contending the court doesn’t have jurisdiction over the matter. Also, Lavelle wrote that the indictment violates state law and the double-jeopardy clause in the U.S. Constitution’s Fifth Amendment.
Lavelle specifically pointed to Title 35 of the Ohio Revised Code that “lays out the requirements of candidates and their campaign committees to record and report all campaign-related contributions and expenditures.”
“The problem with Yavorcik’s argument is that the state is not prosecuting” him for Title 35 violations, Schroeder wrote.
The OEC “has no authority and enjoins no jurisdiction over alleged violations of Ohio’s Criminal Code found in Title 29 of the Ohio Revised Code, or alleged violations of Ohio’s money laundering statute found within Title 13” of the ORC, Richter wrote.
Yavorcik, a failed independent 2008 Mahoning County prosecutor candidate, faces 17 counts of tampering with records, four counts of money laundering, three counts of bribery, two counts of conspiracy, and one count of engaging in a pattern of corrupt activity. All are felonies.
“Yavorcik is attempting to rely on a statute that, by its own terms, does not apply to prevent the state from bringing charges in a criminal case,” Schroeder wrote.
The judge could decide this issue shortly.
The Mahoning County Board of Elections filed a complaint with the OEC in March 2014 against Yavorcik contending his campaign finance reports are incomplete. In June 2011, the OEC found Yavorcik committed a violation for submitting incomplete campaign finance reports, but didn’t fine him or refer the matter for criminal prosecution.
“These allegations ... are not present in the indictment at issue in this case,” Richter wrote.
Yavorcik, Youngstown Mayor John A. McNally and Mahoning County Auditor Michael V. Sciortino — the latter two are Democrats — face 83 criminal counts accusing them of being involved in a conspiracy to impede and stop the move of the Mahoning County Department of Job and Family Services from the Cafaro Co.-owned Garland Plaza to Oakhill Renaissance Place, the former Forum Health Southside Medical Center.
The three have pleaded not guilty to the charges.
The Cuyahoga County Prosecutor’s Office and the Ohio Attorney General’s Office are prosecuting the cases.
Prosecutors accuse Yavorcik of improperly accepting money and other benefits from McNally; Sciortino; former Mahoning County Democratic Chairwoman Lisa Antonini, also a former county treasurer; former county Treasurer John Reardon; Anthony Cafaro Sr., former president of the Cafaro Co.; and Flora Cafaro, Anthony’s sister and Cafaro Co. executive. In exchange, prosecutors say Yavorcik agreed not to investigate or prosecute members of the criminal enterprise if elected prosecutor. He lost by 38 percentage points to incumbent Prosecutor Paul J. Gains, a Democrat.
In his motion, Lavelle wrote that Yavorcik was put on a $15,000 retainer in 2008 by the Cafaro Co. for “ongoing and potential future legal issues involving the business matters of a Cafaro family member.” Yavorcik deposited the amount in a bank account and wrote a $15,000 check to his campaign to pay for a poll, Lavelle wrote. Yavorcik failed to report the $15,000 as income on his 2008 tax returns, but subsequently amended the returns, Lavelle wrote.
Yavorcik received the $15,000 from Flora Cafaro. Prosecutors say the money was a bribe.