JACKSONVILLE, Fla. – Two former JEA executives facing federal charges of conspiracy and wire fraud are still on track to face a trial in February, though defense attorneys raised the possibility of asking for a delay.
Former JEA CEO Aaron Zahn and his chief financial officer, Ryan Wannemacher, were indicted in March 2022, for their alleged roles in a proposed bonus plan that could have paid out millions of dollars if the city-owned utility was sold, as was being considered in 2019. They both pleaded not guilty to the charges.
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Zahn and Wannemacher’s trial was initially set for May 2022, then delayed to May 2023. In January, a judge postponed the trial to October 2023. Then, in June, following the eight-day Kastigar hearing, the judge moved the trial to February 2024.
On Monday afternoon, prosecutors and defense attorneys went before U.S. District Judge Brian J. Davis, for a discussion of where the case stands, ahead of the scheduled trial date.
One of Zahn’s attorneys, Eddie Suarez, raised the possibility of asking for a 60-day delay of the trial, due to a need for more time to prepare for the case. Suarez pointed to the large amount of time that was devoted to preparing for an eight-day evidentiary hearing earlier this year, as well as preparing additional legal briefs related to it, as well as some personal family matters that have taken his time away from the case.
Prosecutors said that while they had empathy for personal issues, they opposed the case-related reasons for a delay, saying the evidentiary hearing, known as a Kastigar hearing, was six months ago, and that the additional briefings were submitted back in July. The judge asked the defense to put the request in writing, adding that prosecutors would have a chance to respond in writing as well.
Defense attorneys have been challenging the indictment in court over the use of statements that Zahn and Wannemacher gave to city attorneys in January 2020 during an investigation into whether or not JEA could fire Zahn with “cause.” The statements were covered by what are known as Garrity protections, which are extended to public employees who are compelled to testify as part of a workplace investigation and protect the statements from being used against them in a criminal case.
The Kastigar hearing, conducted in May, was held in order for prosecutors to prove their case was not built, either directly or indirectly, on the protected statements. Attorneys for Wannemacher contended that statements he gave during a city council hearing convened by council members Rory Diamond and Ron Salem, known as the “Diamond-Salem Hearing,” were also covered by Garrity protections.
The federal magistrate judge who conducted the hearing, Judge Monte C. Richardson, issued two preliminary reports based on the hearing, concluding that Wannemacher’s statements at the Diamond-Salem hearing were not covered by Garrity protections, and that prosecutors had shown an independent basis for the evidence in the case. Defense attorneys filed objections to each report, and prosecutors were then given a chance to respond to the objections. Prosecutors said Monday that they expected to file their response to the second report this week. It will be up to District Judge Brian J. Davis to issue a final ruling on the motions related to the Garrity-protected statements.
During the 45-minute hearing on Monday, the judge and attorneys discussed other pre-trial matters, such as other motions that are still before the judge, waiting for a ruling. Those include a motion to dismiss, a motion to transfer the case to Tampa, motions to separate the trials of Zahn and Wannemacher, and others.
In a discussion over exhibits that would be presented at trial, assistant U.S. attorney Tysen Duva explained how prosecutors may be preparing three summary exhibits to present at trial. One involved JEA’s obligation and agreements surrounding the new nuclear reactors at Plant Vogtle in Georgia. The reactor project, which was behind schedule and over budget, comes with a $3 billion bill for JEA, and utility leaders have recently said it will lead to rate increases.
Prosecutors also planned to present a summary chart regarding solar power projections prepared as part of the strategic planning process that led up to JEA’s invitation to negotiate, or ITN, which formally invited private companies to submit bids to buy the utility.
Duva characterized the previous projections as “wildly misplaced and untrue,” and said his team was putting together statistics about what true solar adoption had been. He also described a summary chart that would compare past financial projections for JEA with the utility’s actual performance since 2020. While presentations leading up to the 2019 ITN stated JEA was in a “death spiral,” facing falling electric sales that would lead to the need to shed employees, a characterization that was disputed by civic leaders. In court, Duva said JEA’s financial statements have shown that electric sales have remained flat and that the utility now has more employees.