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IN THE COURT OF COMMON PLEAS

CRIMINAL DIVISION
SUMMIT COUNTY, OHIO

)
STATE OF OHIO, ) CASE NO. CR 2024-02-0473-B
)
Plaintiff, ) JUDGE SUSAN BAKER ROSS
)
vs. )
) JOINT MOTION TO OVERRULE
MICHAEL J. DOWLING, ) STATE’S DESIGNATION OF
) FIRSTENERGY AS VICTIM UNDER
Defendant. ) MARSY’S LAW
)
)
)
STATE OF OHIO, ) CASE NO. CR 2024-02-0473-C
)
Plaintiff, ) JUDGE SUSAN BAKER ROSS
)
vs. )
)
CHARLES E. JONES, )
)
Defendant. )
)

Defendants Charles E. Jones and Michael J. Dowling respectfully move the Court to

overrule the State’s designation of FirstEnergy as a “victim” under Marsy’s Law. A memorandum

in support of this motion is attached, and a proposed order granting this motion will be submitted

concurrently.

[Signature blocks on following page.]

Tavia Galonski, Summit County Clerk of Courts

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Date: May 1, 2024 Respectfully Submitted,

/s/ John F. McCaffrey (per consent) /s/ Carole S. Rendon

John F. McCaffrey (0039486) Carole S. Rendon (0070345)
Hannah M. Smith (0090870) Daniel R. Warren (0054595)
Robert Porter (0098996) Terry M. Brennan (0065568)
TUCKER ELLIS LLP Rachael L. Israel (0072772)
950 Main Ave., Suite 1100 Taylor M. Thompson (0098113)
Cleveland, OH 44113 BAKER & HOSTETLER LLP
Tel: 216.592.5000 127 Public Square, Suite 2000
Fax: 216.592.5009 Cleveland, OH 44114
john.mccaffrey@tuckerellis.com Telephone: 216-621-0200
hannah.smith@tuckerellis.com Facsimile: 216-696-0740
robert.porter@tuckerellis.com Email: crendon@bakerlaw.com
Email: dwarren@bakerlaw.com
Dan K. Webb (admitted pro hac vice) Email: tbrennan@bakerlaw.com
Steven Grimes (admitted pro hac vice) Email: risrael@bakerlaw.com
Matthew Durkin (admitted pro hac vice) Email: tathompson@bakerlaw.com
WINSTON & STRAWN LLP
35 W. Wacker Drive George A. Stamboulidis (admitted pro hac
Chicago, IL 60601 vice)
Telephone: 312-558-5600 BAKER & HOSTETLER LLP
Fax: 312-558-5700 45 Rockefeller Plaza
dwebb@winston.com New York, NY 10111
sgrimes@winston.com Telephone: 212-589-4200
mdurkin@winston.com Facsimile: 212-589-4201
Email: gstamboulidis@bakerlaw.com

Attorneys for Defendant Michael J. Dowling Noah Munyer (0086575)

121 South Main Street, Suite 520
Akron, Ohio 44308
Telephone: 330-253-0785
Facsimile: 330-253-7432
Email: noah@ohiodefensefirm.com

Attorneys for Defendant Charles E. Jones

Tavia Galonski, Summit County Clerk of Courts

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IN THE COURT OF COMMON PLEAS

CRIMINAL DIVISION
SUMMIT COUNTY, OHIO

)
STATE OF OHIO, ) CASE NO. CR 2024-02-0473-B
)
Plaintiff, ) JUDGE SUSAN BAKER ROSS
)
vs. )
) BRIEF IN SUPPORT OF JOINT MOTION
MICHAEL J. DOWLING, ) TO OVERRULE STATE’S DESIGNATION
) OF FIRSTENERGY AS VICTIM UNDER
Defendant. ) MARSY’S LAW
)
)
)
STATE OF OHIO, ) CASE NO. CR 2024-02-0473-C
)
Plaintiff, ) JUDGE SUSAN BAKER ROSS
)
vs. )
)
CHARLES E. JONES, )
)
Defendant. )
)

INTRODUCTION

The State’s central allegation in this case is that Mr. Jones and Mr. Dowling, while serving

as FirstEnergy’s CEO and Senior Vice President of External Affairs, paid Mr. Randazzo $4.3

million of FirstEnergy’s funds in exchange for Mr. Randazzo’s agreement to take official action

as PUCO Chair to benefit FirstEnergy. In July 2021, FirstEnergy was charged in a federal

information arising from the same alleged bribery scheme with knowingly and voluntarily joining

a conspiracy to defraud the public of its right to the honest services of a public official (i.e., Mr.

Randazzo). 1 In exchange for avoiding federal prosecution, FirstEnergy asserted in a deferred

1
United States v. FirstEnergy Corp., 1:21-cr-86 (S.D. Ohio), ECF Doc. 1.
3

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prosecution agreement that it was a co-conspirator in and perpetrator of the alleged scheme—not

a victim of it. Consistent with FirstEnergy’s own admission, the Court should overrule the State’s

designation of FirstEnergy as a “victim” in this case under Marsy’s Law.

Even absent the company’s admission, FirstEnergy would be responsible as a matter of

law for the alleged scheme, which the indictment alleges was undertaken by FirstEnergy’s high-

ranking executives to further FirstEnergy’s interests. Indeed, in its deferred prosecution agreement,

FirstEnergy specifically “admits, accepts, and acknowledges that it is responsible under United

States law for the acts of its current and former officers, employees, and agents” and “admits,

accepts, and acknowledges that it is responsible under United States law for the acts as charged in

the Information.” 2 Courts consistently hold that corporations in FirstEnergy’s position do not

qualify as “victims” of crimes allegedly committed by their high-ranking executives in furtherance

of the corporations’ interests, especially when the corporation has chosen to admit being a co-

conspirator in the alleged crimes.

The State’s designation of FirstEnergy as a “victim” also directly contradicts positions the

Attorney General has taken on behalf of the State regarding FirstEnergy’s alleged culpability. In

related litigation against FirstEnergy and in promoting himself in the media, the Attorney General

has repeatedly insisted that FirstEnergy was a perpetrator—not a victim—of the alleged bribery

scheme described in the indictment, often pointing to FirstEnergy’s admissions in its deferred

prosecution agreement in support. Likewise, in this case, the State (through the Attorney General’s

specially designated prosecutors) has disclosed that FirstEnergy is a target or subject of the State’s

ongoing investigation and may be charged criminally, and in its effort to build a case against Mr.

Jones and Mr. Dowling, the State has offered immunity or non-prosecution agreements to several

2
United States v. FirstEnergy Corp., 1:21-cr-86 (S.D. Ohio), ECF Doc. 3, p. 1.
4

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former senior FirstEnergy executives involved in FirstEnergy’s dealings with Mr. Randazzo. The

State’s indictment also relies heavily on and quotes directly from the factual assertions in

FirstEnergy’s deferred prosecution agreement.

Nor can the State have it both ways by claiming, as it has, that FirstEnergy can

simultaneously be a victim of and co-conspirator in the same alleged bribery scheme. Courts have

rejected that unsound proposition as a matter of law. And, in any event, the State’s contention

relies on its inclusion of dubious “theft” counts in the indictment that cannot be squared with (and

indeed are defeated by) the indictment’s factual allegations.

The State’s improper designation of FirstEnergy as a “victim” will unnecessarily

complicate these proceedings and threatens to impair Mr. Jones’s and Mr. Dowling’s right to

defend themselves. According to the Attorney General, FirstEnergy’s “victim” designation entitles

FirstEnergy to “receive restitution” and to be “heard . . . during public proceedings,” among several

other things. 3 The Attorney General also has stated that the victim status bestowed on FirstEnergy

would entitle it to “refuse interview[,] deposition[, and] discovery requests made by the accused,”

potentially limiting Mr. Jones’s and Mr. Dowling’s ability to obtain exculpatory evidence. 4 The

State should not be permitted to gain unfair tactical advantages in a criminal prosecution by

improperly designating FirstEnergy as a “victim,” especially when that designation contradicts

FirstEnergy’s own admissions and the position the State has taken consistently and stridently in

this case and elsewhere.

3
Ohio Attorney General, Crime Victim’s Rights, (Sept. 6, 2023), https://www.ohioattorneygeneral.
gov/Files/Publications-Files/Publications-for-Victims/Crime-Victims-Bill-of-Rights.aspx
(accessed April 29, 2024).
4
Id. Notably, the Attorney General overstates some implications of Marsy’s Law. See State ex rel.
Thomas v. McGinty, 8th Dist. No. 108633, 2019-Ohio-5129, ¶ 42, aff’d, 2020-Ohio-545 (holding
victim’s right to “refuse a discovery request must be weighed against a criminal defendant's
rights”).
5

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BACKGROUND

The indictment purports to describe a bribery scheme carried out by FirstEnergy’s high-

ranking executives on FirstEnergy’s behalf and for FirstEnergy’s benefit—in other words, an

alleged scheme carried out by FirstEnergy itself. The indictment hardly portrays FirstEnergy as a

victim. To the contrary, it alleges that “[FirstEnergy] set out to buy the part of Ohio government

that it cared about the most” and that “FirstEnergy saw the opportunity to put its loyally corrupt

agent inside the new government.” Indictment at pp. 2-3. It claims that, in exchange for bribes to

Mr. Randazzo disguised as contract payments, including the $4.3 million payment, “Randazzo

would work hard for FirstEnergy from inside the government” to “further the interests and profits

of FirstEnergy Corp.” and to “advance FirstEnergy’s regulatory and policy agendas.” Id. at pp. 3,

5, 11. Indeed, the indictment alleges no direct personal benefit from the alleged scheme to Mr.

Jones and Mr. Dowling, but only that they supposedly “profited personally as the price of their

FirstEnergy [s]tock rose.” Id. at p. 4.

The indictment relies heavily on FirstEnergy’s deferred prosecution agreement with the

United States Department of Justice (the “DPA”) to support its bribery allegations. The indictment

alleges, for example, that “[i]n that agreement, FirstEnergy Corp. admitted that the $4,333,333.00

payment it made on January 2, 2019 to Randazzo was part of a conspiracy ‘to defraud the public

of its right to the honest services of a public official through bribery or kickbacks.’” Indictment at

p. 9 (quoting DPA). 5

5
The federal district court presiding over the criminal cases resulting in FirstEnergy’s DPA, the
parallel federal charges against Mr. Randazzo, and the conviction of Mr. Householder, recently
observed that the “thrust of the Government’s allegations, across all three cases, is that FirstEnergy
engaged in a scheme of identifying official acts that would benefit the company and then bribing
any state official or employee who could deliver on those acts.” United States v. Randazzo, 2024
WL 1332256, at *9 (S.D. Ohio Mar. 28, 2024). Specifically regarding the parallel federal charges
against Mr. Randazzo, the federal district court observed that “essentially, FirstEnergy was
6

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But in that same DPA, FirstEnergy “admit[ted], accept[ed], and acknowledge[d] that it is

responsible for the acts of its current and former officers, directors, employees, and agents.” DPA

at p. 14. FirstEnergy also “expressly agree[d] that it shall not, through present or future attorneys,

. . . agents or any other person authorized to speak for FirstEnergy Corp., make any public

statement, in litigation or otherwise, contradicting the acceptance of responsibility by FirstEnergy

Corp. set forth” in the DPA. Id. at p.8. In compliance with that agreement, FirstEnergy has

consistently admitted engaging in bribery even as it defends against civil litigation arising from

the alleged scheme on other grounds. See, e.g., Br. of Appellant FirstEnergy Corp. at 12, Owens

v. FirstEnergy Corp. et al., No. 23-3940, Doc. 31 (6th Cir. Feb. 9, 2024) (“FirstEnergy has

admitted that it made illegal political contributions. But that does not mean that FirstEnergy

committed securities fraud.”).

In parallel litigation, the Attorney General (whose office is also leading this prosecution)

has relied on FirstEnergy’s DPA to assert that FirstEnergy perpetrated the same bribery scheme

alleged in this indictment. In a related civil RICO case pending in Franklin County against

FirstEnergy, Mr. Jones, Mr. Dowling, and Mr. Randazzo, the Attorney General attached the DPA

as an exhibit to its operative complaint, alleging that “[a]s the result the [sic] admissions contained

in the DPA[,] . . . FirstEnergy has admitted to engaging in a pattern of corrupt activities under R.C.

2923.31”—the same RICO offense charged in this case. Second Am. Compl. ¶ 143 & Ex. D, State

of Ohio v. FirstEnergy Corp., et al., Franklin C.P., No. 20 CV 006821 (Aug. 17, 2021). In that

case, the Attorney General seeks billions of dollars in damages from FirstEnergy and injunctive

relief, including potentially dissolving FirstEnergy as a corporation. Id. ¶ 174 & Prayer for Relief.

charged with bribing [Mr. Randazzo], and now [Mr. Randazzo] is charged with accepting those
bribes.” Id.
7

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Similarly, in numerous public statements, the Attorney General has claimed that

FirstEnergy is a perpetrator of the alleged bribery scheme, never once describing FirstEnergy as a

victim of the scheme it allegedly perpetrated. For example, in a promotional piece titled, “AG

Yost’s civil case against FirstEnergy and its accomplices,” the Attorney General touted that “Yost

also file[d] for recovery of the $4.3 million bribe paid by FirstEnergy to Randazzo.” 6 In the

accompanying press release, the Attorney General praised certain legal actions he took after

“FirstEnergy admitted [in the DPA] to paying Sam Randazzo . . . a $4.3 million bribe.” 7 The press

release also trumpeted the Franklin County case as “mark[ing] the beginning of a series of court

actions by Yost in the past 12 months aimed at halting FirstEnergy’s cash grab.” 8

Notwithstanding FirstEnergy’s admissions and the Attorney General’s repeatedly asserting

that FirstEnergy was a co-conspirator and perpetrator of the alleged bribery scheme described in

this indictment, the Principal Assistant Attorney General disclosed at the February 13, 2024,

arraignment that the State had designated FirstEnergy Corp. as a victim under Marsy’s Law in this

case. Arraignment Tr. 31:11-16.

In a subsequent conference with Mr. Jones’s and Mr. Dowling’s counsel concerning

FirstEnergy’s “victim” designation, among other topics, the State disclosed that FirstEnergy is a

target or subject of the ongoing criminal investigation that resulted in this indictment against Mr.

Jones and Mr. Dowling. The State further disclosed that the decision whether to charge FirstEnergy

6
Ohio Attorney General, AG Yost’s civil case against FirstEnergy and its accomplices, (Sept.
23, 2021), https://www.ohioattorneygeneral.gov/getattachment/7479848e-4756-4c4e-b32c-
cb44e6781826/first-energy-timeline-graphic.png (accessed April 29, 2024).
7
Ohio Attorney General, Press Release: AG Yost Has Spent Past Year Eradicating Corrupt
HB6, Saving Ohioans $2 Billion, (Sept. 23, 2021),
https://www.ohioattorneygeneral.gov/Media/News-Releases/September-2021/AG-Yost-Has-
Spent-Past-Year-Eradicating-Corrupt-HB (accessed April 29, 2024).
8
Id.
8

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criminally in this case remains under discussion, as is the possibility that FirstEnergy may instead

enter into a deferred (or non-) prosecution agreement with the State. In addition, discovery in this

case has revealed that the State has attempted to build a case against Mr. Jones and Mr. Dowling

by offering immunity or non-prosecution agreements to several other former high-ranking

FirstEnergy executives who were involved with FirstEnergy’s dealings with Mr. Randazzo,

including legal review and approval of the $4.3 million contract payment at issue. Yet the State

has refused to withdraw FirstEnergy’s “victim” designation, asserting the untenable position that

FirstEnergy can simultaneously be a “victim” under Marsy’s Law, on one hand, and on the other

hand, an admitted co-conspirator and perpetrator, vicariously culpable corporate entity, target (or

subject) of the State’s ongoing criminal investigation, and potential criminal defendant in this case.

FirstEnergy did not respond to a written request, dated April 19, 2024, from Mr. Jones’s

and Mr. Dowling’s counsel for FirstEnergy’s position on this motion. On April 25, 2024, however,

FirstEnergy disclosed in its Form 10-Q SEC filing that FirstEnergy is “discuss[ing] an appropriate

resolution of the [OOCIC] investigation” and “believes that it is reasonably possible that it will

incur a loss in connection with the resolution.” 9 FirstEnergy further disclosed that “[i]n connection

with the ongoing OOCIC resolution discussions, [FirstEnergy] is also discussing an appropriate

settlement of [the parallel Franklin County] civil action with the [Ohio Attorney General]” and

anticipates “incur[ring] a loss” in connection with that action, too. 10

9
FirstEnergy Corp., Quarterly Report (Form 10-Q), p. 39 (April 25, 2024),
https://www.sec.gov/Archives/edgar/data/1031296/000103129624000026/fe-20240331.htm
(accessed April 29, 2024).
10
Id. at 67.
9

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ARGUMENT

I. FIRSTENERGY IS NOT A “VICTIM” UNDER MARSY’S LAW

Under Ohio’s Marsy’s Law, a “victim” is a “person against whom the criminal offense or

delinquent act is committed or who is directly and proximately harmed by the commission of the

offense or act.” Ohio Constitution, Article I, Section 10a(D). Among those specifically excluded

from qualifying as a “victim” are “the accused.” Id.; see generally City of Centerville v. Knab, 162

Ohio St.3d 623 (2020). FirstEnergy does not meet the definition of a “victim” under Marsy’s Law.

FirstEnergy does not qualify as a victim under this constitutional standard for the

fundamental reason that FirstEnergy is an admitted (and accused) co-conspirator and participant

in the alleged crime. FirstEnergy was charged in a federal information with conspiring to commit

the same purported bribery scheme that is alleged in this indictment, and FirstEnergy chose to

admit, in exchange for an agreement to avoid prosecution, to being a co-conspirator. See, e.g.,

supra 7 (citing DPA). While FirstEnergy has not been charged in this case to date, the State has

identified FirstEnergy as a target or subject of its ongoing criminal investigation, the indictment

describes, in substance, FirstEnergy as a co-conspirator and perpetrator, and FirstEnergy and the

State are actively negotiating a potential deferred (or non-) prosecution agreement. See, e.g., supra

6 (citing Indictment) & 8-9 (citing FirstEnergy 10-Q). Moreover, the Attorney General whose

office is prosecuting this case has publicly declared on multiple occasions that FirstEnergy was a

co-conspirator and perpetrator of the alleged bribery scheme. See, e.g., supra 7-8 and fn. 6, 7.

Whether formally charged or not, co-conspirators and perpetrators do not qualify as victims of

their own alleged crimes under victims’ rights statutes like Ohio’s Marsy’s Law. See United States

v. Lazarenko, 624 F.3d 1247, 1252 (9th Cir. 2010) (co-conspirator not “victim” under victims’

rights statutes; “as a general rule, an order of restitution to a co-conspirator is a ‘fundamental’ error

that ‘adversely reflect[s] on the public reputation of the judicial proceedings’”) (quoting United
10

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States v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006)); United States v. Lazar, 770 F. Supp. 2d 447,

452 (D. Mass. 2011) (co-conspirator does not qualify as victim “whether or not the conspirator is

formally charged as a defendant”).

Moreover, the indictment alleges, in substance, that Mr. Jones and Mr. Dowling acted on

FirstEnergy’s behalf in their roles as high-ranking FirstEnergy executives in committing the

purported crimes. See, e.g., supra 6; see also Indictment at p. 11 (“Jones and Dowling actively

worked to spend FirstEnergy money to improperly influence Randazzo to exercise the authority

of the office of PUCO Chairman to advance FirstEnergy’s regulatory and policy agendas.”). Under

basic principles of corporate and agency law, such alleged conduct (if it were true) would be

imputed to the company, again making FirstEnergy the alleged perpetrator rather than the victim.

See United States v. Block, 2018 WL 722854, at *1, 3 (S.D.N.Y. Feb. 6, 2018) (corporation not

“victim” of former executive’s alleged scheme to benefit personally by fraudulently inflating

corporation’s share price; “VEREIT is more accurately regarded as a coconspirator than a ‘victim’

of Block’s crimes”); United States v. Iacobelli, 2019 WL 1508035, at *3 (E.D. Mich. Apr. 5, 2019)

(entity not a “victim” of former board member who had authority to make “improper donations

and payments” on entity’s behalf). 11

In re Wellcare Health Plans, Inc., 754 F.3d 1234 (11th Cir. 2014), is on point. There,

Wellcare had “entered into a deferred prosecution agreement” in which it “admitted . . . that,

‘acting through its former officers and employees,’ it ‘knowingly and willfully conspired . . . to

execute . . . a scheme and artifice to defraud’ Florida healthcare programs of approximately $40

million.” Id. at 1236. A grand jury subsequently indicted Wellcare’s former CEO, former Vice

11
As noted above, the State has offered immunity or non-prosecution agreements to other former
senior FirstEnergy executives whose conduct also would be imputed to FirstEnergy.
11

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President of Government and Regulatory Affairs, and other former executives of “conspiracy,

making false statements, and healthcare fraud” in connection with the same alleged scheme. Id.

The federal district court denied Wellcare’s motion to be designated as a “crime victim” of its

former officers’ and employees’ alleged crime, and the Eleventh Circuit denied Wellcare’s petition

for a writ of mandamus challenging the district court’s ruling. Id. at 1236, 1239-40.

The definition of “crime victim” under the federal victims’ rights statute at issue in

Wellcare is identical in all material respects to the definition of “victim” under Ohio’s Marsy’s

Law. Under the analogous federal statute, a “‘crime victim’ [is] ‘a person directly and proximately

harmed as a result of the commission of a Federal offense.’” Id. at 1238 (quoting 18 U.S.C. §

3771(e)). And the statute further provides that a “person accused of the crime may not obtain any

form of relief under this chapter.” Id. (quoting 18 U.S.C. § 3771(d)(1)). Applying that definition,

the Eleventh Circuit determined that Wellcare was not a victim because an “entity that admits to

engaging in illegal fraud cannot be a ‘victim’ of that fraud.” Id. at 1239. In addition, the court

reasoned that “Wellcare is responsible for the acts of its top-level executives,” and cannot be a

victim of “its own conduct.” Id. at 1240. The same result is warranted here. 12

II. FIRSTENERGY CANNOT BE BOTH “VICTIM” AND CO-CONSPIRATOR

In conferring with Mr. Jones’s and Mr. Dowling’s counsel, the State has contended that

FirstEnergy is both a victim of and co-conspirator in the alleged bribery scheme. The State appears

to rely primarily on its inclusion of “theft” counts in the indictment, which claim that Mr. Jones

12
Ohio courts regularly “look[] to analogous federal statutes and case law for guidance.” Ohio
C.R. Comm. v. Harlett, 132 Ohio App. 3d 341, 344 (6th Dist.1999). Looking to federal courts for
guidance is especially warranted here, given the recent enactment of Ohio’s Marsy’s Law and the
limited number of Ohio cases interpreting its provisions. See, e.g., State v. Davis, 62 Ohio St. 3d
326, 342 (1991) (looking to “federal courts which have interpreted the analogous federal rule”
because “this court has not previously addressed the issue”).
12

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and Mr. Dowling stole money from FirstEnergy by purportedly causing the $4.3 million

contractual payment to be made to Sustainability Funding Alliance without FirstEnergy’s consent.

The State’s contention is incorrect.

To begin with, the State’s theft counts cannot support FirstEnergy’s “victim” designation

because they are legally and logically (and factually) meritless. The State cannot prove that the

$4.3 million contractual payment was made “[w]ithout the consent of “FirstEnergy.” R.C.

2913.02(A)(1)-(2). FirstEnergy has asserted in the DPA—and the Attorney General has repeatedly

claimed in numerous court filings and public statements—that FirstEnergy made that payment

voluntarily and knowingly (and indeed intended it to be a bribe). And the State’s own indictment

alleges that “FirstEnergy agreed to pay out in full Randazzo’s consulting services contract just

before he was nominated to run the PUCO.” Indictment at p. 3 (emphasis added). Nor does an

executive commit theft by purportedly authorizing a contractual payment within the scope of their

employment merely because the payment is later claimed to have been for an illegal purpose. See

State v. Burrows, 80 Ohio App.3d 404, 408 (8th Dist. 1992) (overturning theft conviction of

bookkeeper authorized by owner of funds to obtain and exert control over cash transactions).

But even if the theft counts were valid, FirstEnergy’s admitted participation in the alleged

bribery scheme from which the theft counts arise would preclude FirstEnergy from qualifying as

a “victim” in this case. The Ninth Circuit addressed precisely this issue in Lazarenko, where the

court considered the “bizarre question whether . . . a co-conspirator in the crimes of conviction”

was “nevertheless also a ‘victim’ under the restitution statutes” by virtue of interrelated offenses

arising from the same alleged scheme. 624 F.3d at 1250. In that case, a politician and

businessperson were charged in connection with an alleged bribery scheme involving the politician

“us[ing] his political power to crush” the businessperson’s competition in exchange for kickbacks.

13

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Id. The politician was convicted of “conspiring to launder money with” the businessperson, and

the businessperson pleaded guilty to his role in the conspiracy. Id. at 1250 & n.4. However, the

jury also found, as a predicate offense for the money laundering conspiracy charge, that the

politician had “obtained the [laundered] money illegally by means of extortion” from the

businessperson. Id. at 1250. In light of the politician’s extortion conviction, the businessperson

contended that he was “both a victim [of] and a participant” in the money laundering scheme. Id.

The Ninth Circuit rejected the businessperson’s contention as requiring an “absurd

result[].” Id. at 1251 (noting, for example, that “[o]therwise, the federal courts would be involved

in redistributing funds among wholly guilty co-conspirators, where one or more co-conspirators

may have cheated their comrades”). The appellate court found instead that the businessperson was

not a “victim” under the victim’s rights statutes, holding that “in the absence of exceptional

circumstances, a co-conspirator cannot recover restitution for crimes in which he or she

participates.” Id. Here, because FirstEnergy has admitted to participating in the alleged bribery

scheme charged in the indictment, this Court should likewise find that FirstEnergy does not qualify

as a “victim” by virtue of theft counts arising from the same alleged scheme. 13

CONCLUSION

For the foregoing reasons, the Court should overrule the State’s designation of FirstEnergy

as a victim under Marsy’s Law.

13
The “exceptional circumstances” mentioned in Lazarenko are not present here. The Ninth Circuit
distinguished cases like Lazarenko (and this one) from a case in which a woman was “technically
a co-conspirator” in her own human trafficking, but then “was forced to be a slave and rape victim”
“after the completion of her small part of the conspiracy.” Lazarenko, 624 F.3d at 1252 (emphasis
in original). The court explained that the “extreme facts of that case and our mode of analysis
demonstrate that it was an exceptional case that proved the general rule.” Id.
14

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Date: May 1, 2024 Respectfully Submitted,

/s/ John F. McCaffrey (per consent) /s/ Carole S. Rendon

John F. McCaffrey (0039486) Carole S. Rendon (0070345)
Hannah M. Smith (0090870) Daniel R. Warren (0054595)
Robert Porter (0098996) Terry M. Brennan (0065568)
TUCKER ELLIS LLP Rachael L. Israel (0072772)
950 Main Ave., Suite 1100 Taylor M. Thompson (0098113)
Cleveland, OH 44113 BAKER & HOSTETLER LLP
Tel: 216.592.5000 127 Public Square, Suite 2000
Fax: 216.592.5009 Cleveland, OH 44114
john.mccaffrey@tuckerellis.com Telephone: 216-621-0200
hannah.smith@tuckerellis.com Facsimile: 216-696-0740
robert.porter@tuckerellis.com Email: crendon@bakerlaw.com
Email: dwarren@bakerlaw.com
Dan K. Webb (admitted pro hac vice) Email: tbrennan@bakerlaw.com
Steven Grimes (admitted pro hac vice) Email: risrael@bakerlaw.com
Matthew Durkin (admitted pro hac vice) Email: tathompson@bakerlaw.com
WINSTON & STRAWN LLP
35 W. Wacker Drive George A. Stamboulidis (admitted pro hac
Chicago, IL 60601 vice)
Telephone: 312-558-5600 BAKER & HOSTETLER LLP
Fax: 312-558-5700 45 Rockefeller Plaza
dwebb@winston.com New York, NY 10111
sgrimes@winston.com Telephone: 212-589-4200
mdurkin@winston.com Facsimile: 212-589-4201
Email: gstamboulidis@bakerlaw.com

Attorneys for Defendant Michael J. Dowling Noah Munyer (0086575)

121 South Main Street, Suite 520
Akron, Ohio 44308
Telephone: 330-253-0785
Facsimile: 330-253-7432
Email: noah@ohiodefensefirm.com

Attorneys for Defendant Charles E. Jones

15

Tavia Galonski, Summit County Clerk of Courts

CR-2024-02-0473-B BAKER ROSS, SUSAN 05/01/2024 15:18:44 PM MOTN Page 16 of 17

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing was filed with this Court’s

electronic filing system on May 1, 2024, which will provide notice to all counsel of record with

courtesy copies provided via email upon the following:

Carol O’Brien Counsel for the State

Deputy Attorney General
Matthew Meyer
Principal Assistant Attorney General
Samuel Peterson
Deputy Solicitor General
30 E. Broad St., 14th Floor
Columbus, Ohio 43215
Phone: 614.466.4320
carol.obrien@ohioago.gov
matthew.meyer@ohioago.gov
samuel.peterson@ohioago.gov

Brad Gessner Counsel for the State

Assistant Prosecuting Attorney – Chief Counsel
Summit County Prosecutor’s Office
53 University Ave.
Akron, Ohio 44308
bgessner@prosecutor.summitoh.net

Richard H. Blake
Alex Bruce Counsel for Sustainability Funding
600 Superior Ave. E Alliance & IEU-Ohio Administration
Suite 2100 Co.
Cleveland, Ohio 44114
rblake@mcdonaldhopkins.com
abruce@mcdonaldhopkins.com

Roger P. Sugarman Counsel for Sustainability Funding

6025 Cranberry Ct. Alliance & IEU-Ohio Administration
Columbus, Ohio Co.
rogerpsugarman@gmail.com

Andrew R. DeVooght Counsel for Sustainability Funding

Loeb & Loeb, LLP Alliance & IEU-Ohio Administration
321 North Clark Street Co.
Chicago, IL 60654
adevooght@loeb.com

16

Tavia Galonski, Summit County Clerk of Courts

CR-2024-02-0473-B BAKER ROSS, SUSAN 05/01/2024 15:18:44 PM MOTN Page 17 of 17

Respectfully Submitted,

/s/ Carole S. Rendon

Attorney for Defendant Charles E. Jones

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Tavia Galonski, Summit County Clerk of Courts