Ex-JEA CEO Zahn seeks acquittal or new trial
Defense attorneys representing Aaron Zahn, the former JEA CEO who was found guilty last month of committing fraud and conspiracy during his tumultuous run at the utility, asked U.S. District Judge Brian Davis this week to acquit the former executive or give him a new trial.
The request is a long shot with Davis – who, in granting either option, would essentially have to agree he oversaw and organized a fatally flawed trial – but the filing offers a preview of the longer appeal Zahn plans to make to the 11th U.S. Circuit Court of Appeals after he’s been sentenced this summer. In his filing, Zahn’s attorneys cobbled together a list of arguments and grievances with the prosecution, some of which were debunked at trial, others that Davis has already rejected.
The “prejudicial effect of multiple pre-trial and trial rulings and misconduct by the prosecutor demands a new trial in the interest of justice,” his attorneys wrote. That alleged misconduct included Assistant U.S. Attorney A. Tysen Duva “resorting to name calling and comparing (Zahn’s attorney, Eddie Suarez) to Ricky Ricardo,” the fictional Cuban-American husband in “I Love Lucy.” Earlier in the trial, Suarez, whose courtroom demeanor was often marked by self-deprecating humor, had made that comparison himself.
Broadly, Zahn believes there was simply not enough evidence presented at trial for a reasonable jury to convict him.
“The Government failed to prove Mr. Zahn intended to defraud JEA or the City,” his attorneys wrote. “At most, it showed ordinary motivations generally associated with incentive-based compensation, not a knowing attempt to deceive and cheat.”
In finding Zahn guilty of fraud and
conspiracy, the jurors endorsed the prosecution's narrative about Zahn's tenure at JEA: that the inexperienced executive built a fraudulent case to privatize JEA knowing he was set to cash in millions of dollars on the transaction. The prosecution accused Zahn of deceiving the board of directors by disguising his get-rich scheme as an unremarkable long-term incentive program.
“The Government put on evidence that Mr. Zahn may have intended to receive money from the long-term incentive program, but a motive to obtain money is not evidence of intent to defraud,” his attorneys wrote. “The Government put forth no evidence that Mr. Zahn intended to do so illegally, unethically, or that he instructed anyone to withhold any information from the JEA
Board or others.”
Zahn's filing noted that Ryan Wannemacher, JEA's former CFO and Zahn's alleged co-conspirator, was acquitted of the same charges by a separate jury that oversaw the same trial. But Wannemacher's jury saw additional evidence presented by his defense team that Zahn's jury did not, and overall Wannemacher's lawyers staked out a significantly different defense strategy than Zahn.
In opening and closing arguments, for example, Suarez, Zahn's lead lawyer, struck a defiant tone, suggesting that Zahn was the victim of a “deep state” conspiracy. Wannemacher's lead attorney, Jim Felman, offered a more humbled account, even telling jurors at various points that they may have not always liked or agreed with the things Wannemacher had done.
Wannemacher's team also didn't endorse a theory peddled by a paid expert who Zahn's attorneys brought to trial.
That theory suggested the incentive plan wouldn't have generated the large payouts the government alleged because of esoteric accounting principles that prosecutors failed to account for. Duva, the lead prosecutor, effectively discredited that theory, in large part by calling Jeff Rodda, a brilliant auditor in the Jacksonville City Council Auditor's Office, who was also the first to decipher Zahn's scheme, as a rebuttal witness.
Zahn's filing goes back further than the trial, however, rehashing fundamental issues his lawyers have had with the prosecution since the very beginning. The government's case, they argued, rests on the “hypothetical and contingent possibility” that money would eventually be generated by a sale of JEA to a private buyer that could have eventually ended up in Zahn's pockets – too theoretical a scenario to prosecute. “(T)he possibility of Mr. Zahn obtaining property was ‘a mere proposition,'” they wrote.
In this, Zahn's attorneys were talking less to Davis than the appeals judges who will get the case next. In recent decades, the U.S. Supreme Court has significantly diminished the ability of federal prosecutors to go after public corruption, often by adopting a restrictive interpretation of what can qualify as the “money or property” that was at risk of being stolen or embezzled. In Zahn's case, the money in his pocket never materialized because a sale of JEA never happened – a fact that will likely be central to Zahn's appeal.
There is no timeline on when Davis must rule. Davis will have wide latitude when determining Zahn's sentence, the maximum of which could reach 25 years in prison (although maximums are virtually never handed down). That hearing is scheduled for June.
Nate Monroe is a metro columnist whose work regularly appears every Thursday and Sunday. Follow him on Twitter @NateMonroeTU.