Susan Gwinn Post Trial Brief

8/14/2019 Susan Gwinn Post Trial Brief

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IN THE ATHENS COUNTY COURT OF COMMON PLEAS

STATE OF OHIO :PLAINTIFF, :

:

vs. : CASE NO. 09-CR-0-355: JUDGE WILLIAM H. WOLFF, JR.:

SUSAN GWINN :DEFENDANT. :

STATE OF OHIOS POST-TRIAL BRIEF

This case involves two discrete sets of criminal acts by the defendant: her

unauthorized use of Democratic party funds for personal purposes, and her attempt to

conceal the source of her campaign funds during the primary election of 2008. The

victim in each case is the integrity of our electoral system. The losses are not measured in

dollars, but the confidence of the people of Athens County and of Ohio.

The State of Ohio has the burden of proving the elements of each charge beyond a

reasonable doubt, which the State has in fact done. The defense strategy has been largely

one of reasonable doubt but the confusion and doubt are the defendants own late

creation to make opaque what is otherwise transparently clear.

I. Unauthorized Use of Property and Theft in Office

The defendant in this case created a permeable membrane between her finances

and the Athens County Democratic Party (the Party). Not only was the defendant a

donor, she was also lender of first and last resort. As long as the money flowed from her

to the party, her actions were lawful, and perhaps even commendable.

But when the money flowed the other direction, it was unlawful. Her generosity

did not give her authority to use party funds for her personal expenses.


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Most of the elements of the first three counts are uncontested: venue, identity,

ownership of the property, the defendants status as a party official. The defense contests

whether she used the property of another, and whether she did so knowingly.

On December 27, 2007 Treasurer Lenny Eliason wrote check #18771 for $3,500

to Time Warner at the specific, written direction of the defendant. 2 The date is important

for several reasons.

The defendant was about to embark upon her fifth attempt to win public office.

She filed her candidacy petitions less than a week later3 to challenge an incumbent in a

short, 90-day campaign. She had to have cable television ads, and had to clear up her bills

from the fall of 2007.

Unfortunately, between the party and her personal ads, she owed $9,500 to Time

Warner.4 She found herself in impecunious conditions at the end of December 2007, her

business account balance was inadequate to cover all of Januarys operating expenses, and

her personal account balance was no better.

She tried to get Lenny Eliason to pay the bill, but he demurred he testified that

he had already paid in advance for the partys cable ads in the fall. He testified that he

questioned whether the party had really run that many cable ads for an off-year city

election with only two races.

That was when the defendant met with Pam Helton of Time Warner and asked for

a breakout of the charges. She knew what affidavits were, and how to find out exactly

what had run, and how many times -- but the defendant did not ask to see them. She

1 Exhibit 472 Exhibit 73 Exhibit 554 Exhibit A


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simply asked for breakout, and accepted it. Why would this experienced, educated lawyer

not at least review the documentation she knew was routinely produced? The simple

answer is she knew, or suspected, that the actual numbers would be more than she could

pay at that moment.

She directed Eliason in writing to issue the check. Her written direction provided

the protection he needed, and Eliason complied issuing a party check that was more than

$1,000 too much, and covering the defendants expenses.

Rhea Carter of Time Warner testified that she performed a very simple accounting

procedure nothing more complicated than addition and subtraction.

5

She queried the

Time Warner database for the ads that had run during the period of September 1 through

December 31. She totaled the cost of the ads for the party, and totaled the amount of

money paid by the party, and calculated the difference. The party paid for $1,707.88 in

ads for which it did not receive value value that the defendant received instead.

Steve Buzza, a salesman trying to mollify an angry customer, took defendant at her

word that she had issued instructions that were not followed, even though there was not a

scrap of proof to support herpost facto assertion. Giving her every benefit of the doubt,

Buzza still insisted that she had benefited by $1,165.62.6

In the same email giving her the benefit of the doubt, Buzza also noted that she

was six months past due on the March 2008 backdrop she had purchased. The defendants

motive in this case was financial. However lucrative her practice may have been in other

years, the period from March 2007 through March 2008 was a lean, dry time.

5 Exhibit 66 Exhibit F


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When the defendant herself calculated the number, she came up with $1,173.50 a

sum for which she wrote a check to reimburse the party.7 Had she been merely

acquiescing to Time Warners benefit-of-the-doubt calculation, she could have adopted

that similar, lower number. She testified she performed her own calculation.

However it is sliced, Susan Gwinn owed the party more than the $500 alleged in

the indictment. Not one witness created a scenario where she did not use the partys

money for nine months during 2008. That she used the partys property is irrefuted.

These three counts in this case come down to the question of whether the defendant acted

knowingly.

Did the defendant act knowingly? Ohio Revised Code 2901.22(B) provides:

A person acts knowingly, regardless of his purpose, when he is aware that hisconduct will probably cause a certain result or will probably be of a certain nature.A person has knowledge of circumstances when he is aware that suchcircumstances probably exist. (emphasis added)

The evidence shows that the defendant was aware that her conduct would probably

result in her using the property of the party. The evidence also shows that she was aware

that the party probably did not owe as much money as she directed it to pay.

Lenny Eliason testified that he hadnt seen the air time affidavits from Time

Warner for a long time. Yet, when the defendant told him to pay this bill, he would not,

and challenged the defendant. If Eliason, who was as out of the loop as it was possible to

be, could see that the requested payment was too high for what the party had gotten, it

defies reason that the defendant was unaware.

7 Exhibit B


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The defendants actions here are important. Her history demonstrates full

understanding of Time Warner procedures. She was a sophisticated customer, placing

advertising not only for herself, but for the party, and for other candidates as well.

The defendants check #5110,8 written for $1,993.60 on June 13, 2007 carried

three invoice numbers in the memo line.

In the same month, the Defendant wrote a series of six sequential checks to Time

Warner, all on the same day.9 She testified that she wrote a separate check for each

separate invoice number.

On October 26, 2007, defendant issued three checks to Time Warner. All three

included instructions in the memo section for proper application of the payments.

At the moment in question for this indictment late December, 2007 Defendant

issued check #5353 in the amount of $2,000 to Time Warner,10 her client number

carefully noted in the memo line to distinguish it from the party check #1877, enclosed in

the same envelope.

Similarly, check #5398 for $1,450, written on February 22, 2008 carries a memo

noting the customer number for her private law practice, 2194.11

Gwinn had been a customer of Time Warner for years. She reviewed the billings

carefully enough to be able to keep multiple accounts straight. She did so before and

after the period in question, and only experienced difficulties at one specific time yet she

admitted under oath she never asked for the broadcast affidavits.

8 Exhibit I9 Exhibits 57-62

10 Cancelled checks, Exhibit 1511 Cancelled checks, Exhibit 16


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The timing of her complaints. Defendant did not complain about any errors

until Eliason challenged her on the size of the bill she wanted him to pay. Pam Helton,

who like Buzza was a sales person whose commissions were dependent on a happy

customer, testified that the defendant was satisfied with the reconciliation she performed

in December of 2007. Defendants acceptance of the numbers is further documented by

her note to Eliason, using the past tense.

Nary a word was heard from the defendant for nigh on to eight months about any

objections, or billing errors. Not until she received word that a special prosecutor had

been appointed did she profess any renewed confusion. Suddenly, Time Warner couldnt

do anything right.

The defendant claims she issued change instructions for her autumn 2007 media

buy that were not followed, which in turn created the confusion that is the centerpiece

of her defense. But she offers not a scintilla of evidence other than her own word not an

email, a phone message, not so much as a line from a scribbled to do list on a paper

napkin.

All witnesses agreed that Pam Helton was the go-to person in Athens County for

Time Warner. Counsel for the defendant called Pam Helton to testify and could ask her

whatever he chose. Her testimony bears careful thought, as well as the things she did not

say.

Pam Helton was not asked by defense counsel about the specifics of which ads

were changed by the defendant. When, and how were the instructions transmitted? What

ads were substituted, and for what dates? Helton does not know, even though she gets


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paid on the basis of documentation. Neither does the defendant, a lawyer who must

document a myriad of facts in her daily law practice.

The absence of any records of these alleged changes at Time Warner could

conveivably be evidence of the companys incompetence, but the most likely explanation

is that the changes were never ordered, and were fabricated after the fact to explain away

the inconvenient truth.

Smoke and mirrors. Check #5110 carries three numbers in the memo line. It

also includes the curious, and unexplained notation Please leave unapplied on client

#2194. George. During trial, the Defendant seized on this notation as evidence of Time

Warners supposed billing errors.

Defendants assertion fails on closer examination. One of the numbers in the

memo line 94286 corresponds to the TIM number on Defendants Exhibit G. The

client is #2194, Susan Gwinn, Attorney at Law. Thus, the purported notation is the exact

opposite of the memo line. Defendants attempted use of this notation wherever it came

from -- demonstrates her ongoing effort to create confusion and evade responsibility for

her actions.

The confusion asserted by the defense is simply a fabrication after the fact

designed to create reasonable doubt. The defendant has every motive in the world to re-

invent the facts, and has attempted to do so.

She is an experienced lawyer of nearly 30 years. She is a highly successful

county chairman, having led Athens County to a place where it is a de facto one-party

jurisdiction. She served as a member of the board of elections for a decade, and as chair

for half that time. It simply fails credulity to believe that she:


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Issued change orders, but documented nothing Received incomplete billings from Time Warner, but did nothing Was challenged on the amount of the expenditure, but still did not review the

affidavits Owed substantial money to Time Warner, but never reviewed the records for

errors

The record is void of any evidence to support her claims of confusion. Steve Buzza

was not confused he testified that he was trying to satisfy his customer, but was adamant

that no mistake was made. His two brief e-mails12 support his contention that he was

simply trying to mollify his customer. There is no mention in those brief emails of which

ads ran incorrectly, or when, or how many times, or how he came to the conclusion that

Time Warner had made an error.

Rhea Carter was not confused, and produced a very simple balance sheet that

demonstrates exactly how much party money the defendant used to float the cost of her

ads.

Lenny Eliason confessed to being confused but he accepts the defendants

unsupported word that the ads that ran should not have run.

As an exercise in logic, the court should ask itself: if I do not consider the

defendants testimony, am I still confused?

Exhibit 6 lists every ad that ran. It does not list any ads that did not run. There is

no evidence to the contrary and adding the columns shows that the defendant got a

benefit for nine months from the partys money paying for her stuff.

So, if there is no confusion but for her testimony, is her testimony believable? It is

not. The defendant has an obvious motive to lie. The documents that exist do not support

12 Exhibits E & F


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It is also undisputed that these transactions were not reported on the pre-primary or

post-primary reports, which are required under Ohio Revised Code 3517.10, and filed at

the Athens County Board of Elections. There is no dispute about venue.

Defendant argues that 1). She was not the one who filed the reports at the board of

elections, and 2). The $27,5000 were in the nature of personal loans to her, which she was

free to use in any way she pleased and therefore, her statements to the board of elections

are not false.

The defendant is the candidate, who is responsible for the conduct of her

campaign. It is a remarkable proposition that a candidate is not responsible for the

contents of the reports filed by her campaign. The treasurer for the defendants campaign

committee was her long-time legal secretary, who acted under defendants direction and

supervision. However, the court need not wrestle with the drafting vagaries of Chapter

3517, because the settled principles of complicity are adequate to resolve this issue. The

evidence demonstrates that, at the very least, the defendant was complicit in the filing of

the false report.

It is well-settled law in Ohio that a charge of complicity may be stated in terms of

the complicity statute or in terms of the principal offense. R.C. 2923.03(F). From this,

the Ohio Supreme Court has concluded:

Thus, a defendant charged with an offense may be convicted of that offense uponproof that he was complicit in its commission, even though the indictment isstated * * * in terms of the principal offense and does not mentioncomplicity. R.C. 2923.03(F) adequately notifies defendants that the jury may beinstructed on complicity, even when the charge is drawn in terms of the principaloffense. State v. Herring (2002), 94 Ohio St.3d 246, 251, 762 N.E.2d 940.

The record is replete with evidence beyond a reasonable doubt of the defendants

complicity. The defendant testified that she instructed her treasurer to carry the money on


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the campaign finance report as a personal loan from the defendant. Further, the money

was received directly by the defendant. The Greg Kenley wire transfer of $7,500 came

into her personal checking account on February 8, 2007. On the same date, defendant

wrote a check to her campaign committee.

The $20,000 from Daniel Gwinn also came to her personally, albeit through the

subterfuge of a mailing to her mother. The defendant testified that she kept the money

orders in her credenza, and deposited $5,000 at a time.

The defendant did not disclose to her treasurer as to the true source of the money

in her credenza. She actually took an affirmatively deceptive act, and instructed her

treasurer to report falsely that the money was a loan to her campaign. The acts are

sufficient to establish that she aided and abetted her treasurers false report.

Was the report false? Ohio Revised Code 3517.10(B)(4)(b) requires a

campaign finance report to include the full name and address from every person from

whom contributions are received.

A contribution includes a loan. Ohio Revised Code 3517.01(B)(5) provides:

(5) Contribution means a loan, gift, deposit, forgiveness of indebtedness,

donation, advance, payment, or transfer of funds or anything of value * * * (enphasis added)

The cutoff date for the pre-primary report was February 13, 2007. The wire

transfer from Mr. Kenley on February 8 should have been reported in the defendants pre-

primary report, whether it was a transfer of funds, a loan, a gift or other thing of

value. Mr. Kenley was not listed as a source of funds on the defendants pre-primary


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campaign finance report,13 or ever. Neither was the interest paid Mr. Kenley in March

2008 disclosed as a campaign expense.

It is worth noting that the balance in the defendants account on Febaruary 8 was

less than $1,000. But for Mr. Kenleys wire transfer on February 8, she could not have

written a check for $5,000 to her campaign account. As a general principle, money is

fungible, but in this instance the very same dollars that left Mr. Kenleys account on

February 8 went into the defendants campaign account the very same day because there

were no other dollars to make the journey.

A similar analysis applies to the post-primary report. The $20,000 in structured

money orders the defendant received from Daniel Gwinn was never reported as a donation

from him.

Finally, it should be noted that an omission can serve as a basis for criminal

liability if a person has a duty to act. See R.C. 2901.21(A). State v. McNeeley, 48 Ohio

App.3d 73 (1988). In this instance, the evidence shows both that the defendant failed to

perform her duty to report the source of campaign contributions she personally handled -

- and also that she made an affirmative false statement to her treasurer in the preparation

of the campaign finance report, when she directed that the money be reported money as a

loan from her to her committee.

Why does it matter? Defendant would have the court read an exception into the

statute that isnt there call it the friends and family personal loan exception. But the

legislature did not provide such an exception, and a brief glance at the policy behind

campaign finance law shows why.

13 Ex 37


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The bedrock of campaign finance law is transparency. There are no contribution

or expenditure limits at the county level. Accountability is achieved by requiring

reporting of where a candidates money comes from all of it and how it is spent. If a

candidate for county treasurer, for example, wants to accept $100,000 from Jimmy the

Loan Shark, the candidate is free to do so and to explain the donation to the voters.

If the defendants theory is accepted by the court, our hypothetical county treasurer

candidate could accept a personal loan from Jimmy, and report it as a loan to her. The

voters never know anything about Jimmy, and the purpose of the campaign finance law is

gutted. There is no transparency.

The situation becomes more grim if our hypothetical candidate wins office. Now,

she may continue to raise money to pay off her $100,000 campaign debt from herself. As

the campaign raises additional money, it goes back to her, safe and legal except, its

really laundered gift from Jimmy the Loan Shark to officer in charge of the communitys

public money. Like this:

In fairness, there is no evidence pointing to such a nefarious scheme on the part of

the defendant. But if the court were to accept her argument, every candidate for office

Sourceof loaned

funds

Candidate CampaignCommittee


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will be seeking personal loans from benefactors who wish to remain anonymous, and

campaign finance reporting as we know it will be dead.

There is no doubt, reasonable, residual or imaginary. Susan Gwinn took $27,500

from two people, used it for her campaign, and did not report it. She should be convicted

for both counts of falsification.

III. Money Laundering

Ohios money laundering statute is somewhat difficult to read. Defendant is indicted

under Ohio Revised Code 1315.53(F)(1)(c). The pertinent part of the statute is set out

below. The statue is broken out by disjunctive clause, and the relevant choice among the

alternatives is underlined:

(F)(1) No person shall do any of the following:***

(c) With the intent to conceal or disguise the fact that money or a payment

instrument is the proceeds of unlawful activity,

or to promote, manage, establish, carry on, or facilitate the promotion, management,

establishment, or carrying on of unlawful activity,

or to avoid the making or filing of a report required under this section,

or to cause the making or filing of a report required under this section that contains

a material omission or misstatement,

conduct or structure or attempt to conduct or structure a transaction by or through

one or more money transmitters or persons engaged in a trade or business.

The prohibited conduct is to conduct or structure a transaction through a money

transmitter, which is not a defined term, but which certainly includes the United State Post

Office, Hocking Valley Bank and Chase Bank. [see 1315.01(G)]


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Postal Inspector Phil Gentile testified about how structuring takes place

conducting financial transactions in such a way as to avoid reporting requirements or

detection authorities, including tax authorities.

Here, the defendant admitted receiving two envelopes, each stuffed with $10,000

in money orders from her brother, Daniel Gwinn. She did not deposit the $10,000 in a

single transaction, which would have triggered an IRS report, but in multiple, smaller

transactions. She offered no explanation about why she would leave $5,000 in her

credenza, except that she wasnt sure what she was going to do with it. The second

$10,000 was split into three separate deposits.

So, we turn to the question of intent. A persons intent is known only to that

person and God, unless the person expresses it. The record here is devoid of any proper

intent for these curious transactions. The finder of fact is left with circumstantial evidence

to infer intent.

Daniel Gwinn himself testified that he did not want anyone to know he was giving

money to his sister. Although he claimed no recollection, Investigator Spiert testified that

Mr. Gwinn admitted awareness of his sisters political campaign, and her need for money.

He also testified that the defendant admitted discussing the postal regulations with her

brother. The defendant testified, and did not contradict Investigator Spierts testimony.

Mr. Gwinns rationale for obtaining money orders from multiple locations defies

logic. Is cash safer in ones pocket, or in an unattended automobile in a parking lot? Is it

truly happenstance that these transactions, so close together on two days, all equaled

$2,500 non-reportable amount?


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The reasonable inference is that the siblings Gwinn told Spiert the truth before

they knew better. The acts in Mississippi are not the acts charged here they are simply

circumstantial evidence of her intent to conceal the source of her campaign donations.

The defendants actions also reveal her intent. Why did she break it all down into

separate, small deposits into her personal account on different dates? At trial, she

suggested that she might retain part of the money to live on while she campaigned. But if

she had deposited the entire $10,000 into her account, whatever she did not transfer into

her campaign account would remain in her personal account, available for living

expenses. The only reason to piecemeal the transaction is to avoid scrutiny.

We will probably never know why she wanted to conceal the identity of her major

sources of campaign cash. Perhaps it was protectiveness for people she cared about.

Perhaps there are tax consequences swimming under the water, or some other motive.

Regardless of her motive, her intent is clear she intended to hide the source of her cash,

an illegal act.

For the reasons set out above, the State respectfully urges this honorable Court to

find the defendant, Susan Gwinn, guilty of all remaining counts.

Respectfully submitted,

______________________________Dave Yost (0056290)Special Prosecuting Attorney for Athens County140 N. Sandusky St.Delaware, OH 43015(740) 833-2693


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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing States Post-Trial Brief has

been sent, via regular U.S. Mail, to Attorney for defendant, this _____ day of

________________ 2009.

____________________________________Prosecuting Attorney

Susan Gwinn Post Trial Brief

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