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Oakill judge rejects motion from a defendant to dismiss the indictment
CLEVELAND
The judge in the Oakhill Renaissance Place criminal-conspiracy case rejected a motion from the attorney representing Martin Yavorcik, one of the three defendants, to dismiss the indictment.
Mark Lavelle, Yavorcik’s attorney, filed a motion to dismiss in January claiming that the Ohio Elections Commission has “exclusive initial jurisdiction of alleged election law violations.” The commission in 2011 found Yavorcik’s campaign committee committed a violation for submitting incomplete finance reports for his 2008 failed independent bid for Mahoning County prosecutor, but didn’t fine him or refer the matter for criminal prosecution.
In a Tuesday decision, Cuyahoga County Common Pleas Judge Janet R. Burnside, who is overseeing the case, wrote that the OEC case Lavelle cited is against “Yavorcik for Prosecutor,” and not against his client.
“This elections commission matter does not pertain to Yavorcik individually, but a different entity,” and “there is no basis presented in the motion to permit the conclusion that this defendant was prosecuted by or a party to these elections commission proceedings,” the judge wrote.
Even if there isn’t a difference between Yavorcik and his campaign, Judge Burnside wrote, “the court does not find a conflict.”
Yavorcik 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.
The judge wrote that the tampering charges “may present different analysis” because “those charges pertain to certain 2008 pre-election campaign finance reports. The court has no basis to know at this junction” how the state claims the offenses were allegedly committed by Yavorcik, how the reports can be said to be tampered by him, and how the reports can be “deemed to be determined or dictated by its candidate. The defendant in his [motion] to dismiss did not specifically argue this issue and therefore the court does not on its own explore it.”
Prosecutors had objected to Lavelle’s filing contending it pointed to the wrong criminal statute. Also, prosecutors filed an 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” in Yavorcik’s case.
In addition to Yavorcik, a Cuyahoga County grand jury also indicted Youngstown Mayor John A. McNally in his previous capacity as a Mahoning County commissioner, and Michael V. Sciortino, the former Mahoning County auditor, on 83 total criminal counts May 14, 2014. Both are Democrats.
Prosecutors contend the three were part of a criminal enterprise that illegally — and unsuccessfully — tried to impede or 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, owned by the county.
Cafaro received $440,000 a year in rent from the county to house JFS, and it was relocated by county commissioners “because of the poor condition of the building and other issues,” according to prosecutors.
The enterprise, which included numerous others who aren’t indicted, also wanted to get Yavorcik elected prosecutor in 2008 to make a criminal investigation into the matter go away, according to the indictment.
The three have pleaded not guilty to the charges.
Meanwhile, prosecutors responded again to a motion filed from the attorneys of Sciortino and McNally that prosecutors are refusing to turn over secret recordings they claim are being withheld, and asked the judge to consider sanctions such as dismissing the case.
The defendants’ attorneys wrote the FBI had said there were about 2,000 hours of tape recordings of at least one defendant in the first Oakhill case. When federal agents refused to provide those tapes in that initial trial, it was dismissed in July 2011 at the request of prosecutors because not all evidence could have been provided to the defendants.
Since then, the Federal Bureau of Investigation provided about 700 hours of recordings to prosecutors, leading to the second indictment.
Prosecutors have said there are only 700 hours and the 2,000-hour statement was “off the cuff.”
In a Monday filing, prosecutors included a letter from Deane Hassman, a Youngstown-based FBI special agent, who wrote that the bureau has provided all recordings in its possession related to the investigation into the three defendants.
In the letter, Hassman wrote that the number was calculated and the 2,000 hours was an incorrect estimate “based upon the knowledge of 10,000 plus telephone sessions and hundreds of face-to-face recordings.”