JACKSONVILLE, Fla. – Attorneys for former JEA CEO Aaron Zahn are asking that he be allowed to remain free while his convictions on federal charges of conspiracy and wire fraud are appealed to a higher court.
Zahn was convicted in March following a trial that lasted roughly three weeks. He had been accused of trying to take millions in personal profits from a proposed sale of the city-owned utility through a controversial bonus plan that had been proposed. The sale was being explored in 2019, but the process was ended at the end of the year, after additional details about the proposed bonus plan came to light.
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In July, a federal judge sentenced him to four years in prison. Zahn is currently scheduled to report to a federal prison by Oct. 28.
In the motion filed Friday, Zahn’s attorneys argue that he meets the two conditions to remain on release as an appeal is unfolding. First, they argue that he meets the condition of not posing a flight risk or danger to the community, saying that he remained on release pending trial from the time of his indictment in March 2022, and appeared for trial and sentencing.
Part of the second requirement is that the appeal raises a “substantial question of law or fact.” While Zahn’s attorneys did not go into every issue they are basing their appeal on, they did raise several issues from the case.
First, they argue how “property” as described in the federal wire fraud statute was applied in the case. They argue that the money in question that would have gone to the city had the utility been sold, and then potentially spent on the bonus plan, was never money that the city actually had in hand.
Next, they argued against how the case was brought under federal jurisdiction. Part of the charges rely on the fact that JEA got more than $10,000 in federal grants in a single year, which prosecutors said was money the utility got from FEMA in 2019 and 2020, and therefore used to bring the case. The defense argued several ways in which an appeals court could find that wasn’t enough to justify the federal jurisdiction. The motion also argues against prosecutor’s use of the fact that the board meeting was streamed live over the internet, as a “wire communication” under the wire fraud laws.
Defense attorneys also raised issues over how statements made by Zahn that had certain protections were handled with the case.
In late 2019 and early 2020, as the city and JEA tried to determine if Zahn could be fired with cause, he was 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. A federal judge eventually ruled that prosecutors built their case without using evidence that came directly or indirectly from the protected statements. In the new motion, the defense argues there were several legal issues around the Kastigar process that are instances of legal error.
The defense has until Nov. 5 to file their appellate brief with the 11th Circuit of the US Court of Appeals, which is based in Atlanta.
Friday’s motion also states that that Zahn could wind up filing a motion seeking a “modest extension” of his surrender date, due to Hurricane Helene.
This motion says his family’s home sustained “massive damage from water intrusion,” and that a motion for an extension could be filed to give him time to find housing for his family, stabilize his children’s schedules, complete the insurance claim process, and contract for the remediation and reconstruction of the home, before reporting to prison.
On October 10, prosecutors filed a response, opposing Zahn’s request to remain on release during the appeals process. They argued that Zahn’s motion rehashes the same legal theories that the court denied when Zahn first asked that the charges be dismissed. Therefore, prosecutors say, the defense arguments don’t meet the standard of a “close question” for appeal that must be met, for a defendant to remain on release pending appeal.
There is no timeline yet as to when a judge will rule on Zahn’s request to remain free during the appeals process.