CINCINNATI — Judges denied two delays in recent days that would have been key to a bribery and money laundering scandal that took place in Ohio between 2017 to 2020. Lawyers in one suit called it "one of the largest corruption and bribery schemes in U.S. history."
Denial of a delay in one court case means that a player will still be sentenced late next month.
In denying the other, the judge in that case agreed with two former FirstEnergy executives who said federal law enforcement has them in its crosshairs. But she ordered that they be questioned under oath anyway.
One of those denied was former Ohio Republican Party Chairman Matt Borges, who on March 9 was convicted of racketeering along with former Ohio House Speaker Larry Householder. Two others who were also charged in 2020 pleaded guilty and a third died by suicide.
Borges and Householder played very different roles in a scheme to use more than $60 million from Akron-based FirstEnergy to make Householder speaker at the start of 2019 so Householder could pass and protect a $1.3 billion ratepayer bailout that mostly benefited FirstEnergy. But both made heavy use of funds that were passed through 501(c)(4) "dark money" accounts that enabled them to disguise its FirstEnergy source.
Householder directed the effort in 2018 to elect friendly representatives who would make him speaker. He led the 2019 legislative fight to pass the bailout. And he engineered the nasty, dishonest battle to beat back an attempted repeal.
Borges' role was much more limited. He acted as a go-between with statewide officials such as Attorney General Dave Yost and Secretary of State Frank LaRose — and he paid a worker on the repeal campaign $15,000 as the worker shared inside information about its likelihood of success.
Even though Householder's role in the scandal was much bigger than that of Borges, each faces a sentence of up to 20 years in prison on the one count of racketeering of which he was convicted. Householder is scheduled to be sentenced in the Potter Stewart U.S. Courthouse in Cincinnati on June 29. Borges was scheduled for sentencing the next day.
But after his conviction, Borges asked the court for extra time to file post-trial motions asking that his conviction be thrown out. U.S. District Judge Timothy Black agreed, giving him until April 24.
Borges didn't file anything by that deadline. But on May 15, Borges again asked permission to file post-trial motions. He argued that his conviction was on much shakier ground in light of two decisions handed down on May 11 by the U.S. Supreme Court: Ciminelli vs. United States and Percoco vs. United States.
Judge Black, however, on Monday agreed with Assistant U.S. Attorney Emily Glatfelter that the legal theories those decisions dealt with were "neither charged, nor argued, nor instructed" in Borges' case. Black added that it's important to keep the case moving.
"Finally, this case has been litigated, tried, and a verdict returned. Defendant Borges is now scheduled for sentencing on June 30, 2023. Disrupting the schedule would needlessly undermine the interests in judicial efficiency and finality," the judge wrote.
Similarly, a separate federal judge declined to postpone sworn depositions of the two former FirstEnergy executives who directed more than $60 million in corporate cash to Householder-controlled dark money groups that fueled the scandal. She did so even as she acknowledged that former CEO Chuck Jones and former Vice President Michael Dowling "fear they are next in line for indictment" and don't want to incriminate themselves in their depositions.
U.S. Magistrate Judge Kimberly Jolson is helping to manage the administration of a massive class-action suit against FirstEnergy, Jones and Dowling over the Householder scandal. Investors say the recklessness of the scheme cost them big — especially when it came to light and stock values plummeted.
Alleging federal securities fraud, lawyers for pension funds and other investors have said in court filings, "FirstEnergy and its most senior executives bankrolled one of the largest corruption and bribery schemes in U.S. history."
Judge Jolson already slapped Sam Randazzo — Gov. Mike DeWine's former chairman of the Public Utilities Commission of Ohio — for not producing documents related to the $4.3 million FirstEnergy paid him just as DeWine was nominating Randazzo. Even though he was supposed to be regulating the utility, Randazzo, who has not been charged, helped draft the corrupt bailout law.
Last Friday, Jolson also rejected attempts by Jones and Dowling — the former FirstEnergy executives — to delay sworn depositions to September or even later. The depositions had been scheduled for this week and next, but plaintiffs and defendants agreed to a short delay while Jolson considered the request.
In asking to hold off until Sept. 8, Jones and Dowling said that having to give a deposition under oath put them in a position in which they were damned if they did, and damned if they didn't.
Answering questions could put them in criminal jeopardy, but if they took the Fifth, the jury in the class-action case is free to conclude they have something bad to hide, Jones and Dowling argued. They added that it’s certain that the feds are coming after them.
"Although the defendants in (the Householder trial) have been found guilty (but are yet to be sentenced) and charges have not yet been brought against Jones or Dowling, there can be no doubt that the government’s investigation into Jones and Dowling remains ongoing," their motion said.
Judge Jolson replied that she had to weigh those concerns against those of FirstEnergy investors, who already have been fighting the case for nearly three years.
Jones and Dowling "say the stay is temporary, (but) their grounds supporting the stay could extend for months or even years," Jolson wrote. "Presently, they request that the depositions be delayed until at least September 8, 2023. (Jones and Dowling) have chosen this date because it is the first date on which investigations and proceedings conducted by PUCO might resume—after a third six-month stay of those proceedings was recently granted at the request of" federal prosecutors.
The judge added it didn't help the former executives' argument that they haven't been indicted yet because waiting until that question is resolved is a recipe for further delay.
Jolson said she understood the executives' dilemma.
"In sum, there is substantial overlap between the issues in this case and the criminal investigation surrounding the Householder case," she wrote. "And (Jones and Dowling) are faced with legitimate concerns regarding the invocation of their Fifth Amendment rights."
Jolson added, however, that granting a delay would privilege the former executives who funded the corrupt bailout scheme over the aggrieved investors and the public.
"A stay of these key depositions at this moment — with no clear end in sight — would throw a wrench into the works of discovery and impede or even halt the litigation," she wrote. "It would privilege the interests of (Jones and Dowling) above those of Plaintiffs, the public (whose interests are particularly implicated given that this is a class action), and the Court."
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