A federal magistrate judge has found that the criminal case against two former JEA executives was built without the use of protected statements made by the two, even as defense attorneys had argued that the case was tainted and the indictment needed to be dismissed.
Former JEA CEO Aaron Zahn and his former Chief Financial Officer Ryan Wannemacher were indicted in March 2022, in connection with a proposed bonus plan that would have paid out millions of dollars to employees if the city-owned utility were sold.
They were charged with conspiracy and wire fraud. Both have pleaded not guilty.
In late 2019 and early 2020, as the city and JEA tried to determine if Zahn could be fired with cause, he and Wannemacher were compelled to sit for interviews by city investigators.
Those statements were subject to “Garrity rights,” which are protections given to public employees who are compelled to testify so that the information can’t be used against them in a criminal proceeding.
Following the indictment, defense attorneys asked for what’s called a “Kastigar” hearing, named after a 1972 Supreme Court decision.
During that hearing, which was held in May 2023, prosecutors had to prove that their case rests solely on evidence other than the protected statements and anything derived from them.
During the eight-day hearing, prosecutors called witnesses, including investigators, current and former city employees, City Council members and former JEA board members, to establish how they built their case.
Defense attorneys had an opportunity to cross-examine the witnesses and to question whether or not they had been exposed to the protected statements, which had been released to the public in February 2020 during the city’s investigation.
In his 100-page report and recommendation, U.S. Magistrate Judge Monte C. Richardson wrote that prosecutors had shown an independent basis for the facts alleged in the indictment, even assuming that some of the evidence presented to the grand jury was tainted.
He wrote that to the extent the government used any evidence that was tainted by the protected statements, the use was “harmless beyond a reasonable doubt” as the evidence was otherwise enough to support the indictment.
At one point in the report, the judge pushes back on the defense argument that the mere exposure to the protected statements by anyone involved – a prosecutor, an investigator, a witness, or a member of the grand jury – should result in the case being dismissed. The judge cites previous court decisions that found:
“Exposure to a fleeting snippet means nothing. It has no evidentiary coherence or impact.”
Attorneys will now have several weeks to file written objections to the report, and then responses to those objections.
It will then be up to the federal district judge handling the case, Brian J. Davis, to issue a final ruling on whether the protected statements impacted the case.
A separate report from Judge Richardson is currently before Judge Davis for a final decision.
Attorneys for Ryan Wannemacher argued that statements he made before a City Council hearing in December 2019, led by Council members Rory Diamond and Ron Salem and known as the “Diamond-Salem hearing,” were also protected by Garrity rights and couldn’t be used by prosecutors.
The magistrate judge heard testimony and arguments on this matter during the Kastigar hearing in May and issued his report in September.
He found that the statements were not subject to Garrity rights and were therefore not protected from use by prosecutors.
Zahn and Wannemacher are scheduled to face trial in February 2024.
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