By Peter H. Milliken
Defense lawyers in the Oakhill Renaissance Place criminal conspiracy case are still waiting for the prosecution to deliver thousands of hours of tapes that may pertain to the case.
It’s been two months since defense lawyers learned of the existence of the recordings.
To compound the situation, the tapes may be part of an overlapping federal investigation of corruption in the Mahoning Valley. A special prosecutor said, however, he’s not sure how significant the tapes, which the FBI has now, will be for the defendants.
“I believe it’s a bureaucratic problem to get the federal authorities to share the evidence,” said J. Gerald Ingram, concerning the delay in providing the tapes to defense lawyers. Ingram is a defense lawyer representing Atty. Martin Yavorcik, charged with one count of money laundering, and not with conspiracy, in the Oakhill case.
“We don’t know if they are tapes relating to this case. We know they could potentially tangentially relate to this case,” said David P. Muhek, an Oakhill special prosecutor.
Muhek also made reference to other probes now under way. “There are additional overlapping investigations that are occurring right now,” Muhek, an assistant Lorain County prosecutor, told the defense lawyers in the March 31 hearing before visiting Judge William H. Wolff Jr. of Mahoning County Common Pleas Court.
Muhek, who disclosed the existence of the tapes to the defense for the first time in that court hearing, said his office learned of the other probes and of the tapes in recent months from the U.S. Department of Justice.
Muhek said he had no idea whether the tapes were recorded with the consent of the participants in the conversations.
“Until I actually get them and listen to them, I don’t know” whether they were consensually recorded, said Lou DeFabio, the lawyer for John Reardon, the former county treasurer, who is one of the Oakhill defendants.
DeFabio said he presumes Reardon’s voice isn’t on any of the tapes, but he can’t be sure of that.
Nobody speaking in the hearing transcript says whether the tapes are entirely audiotapes, or whether some of them include video; whether they were recorded face-to-face or over the telephone; when, where and by whom the tapes were recorded; and whether they were made through court-authorized wiretaps.
Under federal and Ohio law, someone who’s not a party to a conversation must get a court order to record that conversation, and only law-enforcement personnel can get court authorization for a wiretap, Ingram said.
Under Ohio law, however, any person may legally record secretly any conversation, either in person or by telephone, without a warrant, if he or she is a party to that conversation, DeFabio and Ingram said.
DeFabio and Ingram said their clients received no letters from the FBI saying they’d been wiretapped.
Muhek said he’d have to get the tapes from the FBI and supply them to the defense lawyers. The tapes would supplement more than 56,000 pages of evidence the special prosecutors have already shared with the defense.
“This is a growing case,” Muhek said, adding that Oakhill is “a very complex and cumbersome case.”
After hearing Muhek’s comments, Judge Wolff postponed the Oakhill trial from June 6 to Sept. 6.
Adding to the mystery surrounding the Oakhill matter, a spokesman for the U.S. Attorney’s Office in Cleveland more recently declined to confirm or deny the existence of a federal grand jury investigating allegations of corruption in the Mahoning Valley.
Muhek said in court, however, that the U.S. Attorney’s office, which prosecutes federal criminal cases, is involved in the probes to which the tapes pertain.
Paul M. Nick, an Oakhill special prosecutor, who recently became director of the Ohio Ethics Commission, declined to comment on the tapes or any investigations overlapping the Oakhill case.
In the Oakhill matter, five people and three companies were indicted last July on charges they conspired to impede the move of Mahoning County’s Department of Job and Family Services from Cafaro Co.-owned rented quarters on Youngstown’s East Side to the county-owned Oakhill Renaissance Place.
The county bought Oakhill in 2006 and moved JFS there in 2007. Oakhill is the former Forum Health Southside Medical Center.
Charged in the alleged conspiracy are Anthony M. Cafaro Sr., former president of the Cafaro Co.; the Cafaro Co. and two of its affiliates; county Commissioner John A. McNally IV; county Auditor Michael V. Sciortino; Reardon; and John Zachariah, former county JFS director.
Like Yavorcik, Flora Cafaro, part-owner of the Cafaro Co., is charged only with a single count of money laundering and not with conspiracy.
The money-laundering charge pertains to an allegedly concealed $15,000 gift from Flora Cafaro to Yavorcik’s unsuccessful 2008 campaign for county prosecutor.
For one of the defendants, the tapes may not be an issue. “They don’t apply to Mr. Zachariah at all,” Anthony D. Cillo, another special prosecutor from Lorain County, told Zachariah’s lawyer, Roger Synenberg.
FBI Agent Scott Wilson, an FBI spokesman in Cleveland, declined to comment on why the defense lawyers don’t yet have the tapes, whether the FBI has provided them to the Oakhill special prosecutors, and when the Oakhill defense lawyers could expect to get them; and he referred all questions to the special prosecutors.
Muhek and Cillo did not respond to a request for comment on these matters Friday.
“The foundation of defense-trial preparation is the words of our own clients,” said Martin G. Weinberg, a lawyer for Anthony M. Cafaro Sr.
Weinberg said he and the other defense lawyers were learning for the first time that some of the Oakhill defendants’ voices are on the tapes.
“The FBI agent has access to the words, the intercepted tape recordings of our clients, the intercepted recordings of the witnesses,” Weinberg said.
The defendants who gave interviews “have absolute codified rights to the statements that they are alleged to have made to an FBI agent. Our clients have rights to examine them,” he continued, complaining that defense lawyers should have received the tapes long ago.
The existence of other investigations related to Anthony Cafaro Sr. was revealed in a letter from local FBI agents to George Stamboulidis, another Cafaro lawyer.
“To the extent that there are other ongoing investigations relative to the conduct of your client, an invitation to discuss the resolution of those matters is sincerely extended to you and your client,” FBI agents C. Frank Figliuzzi and John E. Stoll wrote to Stamboulidis.
The FBI letter responded to Stamboulidis’ inquiry about documents pertaining to federal and state investigations triggered by the Oakhill matter.
On Friday, Cafaro lawyers filed a motion to dismiss the Mahoning County grand jury indictment in the Oakhill case due to alleged misconduct and vindictiveness by Mahoning County Prosecutor Paul J. Gains, who requested and obtained from the local common pleas judges the appointment of the special prosecutors.
Judge Wolff will preside over a hearing on that motion at 9 a.m. July 11 in Mahoning County Common Pleas Court.