Why are federal prosecutors in Cleveland passing on major cases investigated by federal agencies?

CLEVELAND, Ohio — Federal prosecutors in recent months passed up handling two major cases in Cuyahoga County: allegations of civil-rights abuses and brutality by more than a dozen East Cleveland police officers and a largescale fraud investigation into cryptocurrency kiosk owners operating in 36 states.

The two carry the hallmarks of typical prosecutions by U.S. attorneys — complicated cases and widespread reach that are backed by resources and technical expertise of the FBI and other federal agencies.

That the FBI and U.S. Secret Service brought them to Cuyahoga County Prosecutor Michael O’Malley has left many wondering why federal prosecutors, with more experience handling such cases, didn’t take them on. The decisions come at a time when overall cases brought federally slid sharply last year.

A spokesman for the U.S. attorney’s office in Cleveland did not respond to messages seeking comment.

Former federal prosecutors who spoke with cleveland.com and The Plain Dealer said the decisions are likely due, in part, to the office lacking a Senate-confirmed leader for the longest stretch in the office’s 166-year history.

“The general thought is that a Senate-confirmed U.S. attorney who has some degree of added clout in the Justice Department would be more inclined to lean forward or refuse to take cases,” said Daniel Richman, a former assistant U.S. attorney in New York and now a Columbia Law School professor.

“Either kind of case can be the sort that requires real support from Washington politically, and I think a confirmed U.S. attorney will be more inclined to stand up to that in those cases.”

O’Malley said he’s unsure why federal authorities brought the cases to his office. He said he’ll review investigations brought to him and determine whether they’re fit for prosecution.

“I’m glad that we were able to take these cases and handle them in the manner in which we have,” O’Malley said. “I frankly enjoy working with our federal law enforcement partners. They bring expertise, and they bring their resources to the table that oftentimes you can’t get locally because municipalities don’t have that level of funding.”

Richman said that other factors could weigh into the decisions in the cases, including differences of opinion between federal prosecutors and investigating agencies about the strength of cases.

Both he and David DeVillers, the former U.S. attorney in southern Ohio, said the importance of a Senate-confirmed U.S. attorney is the political effectiveness and connections they have with Justice Department officials.

“You have a little more clout when you go into main Justice and push for cases,” DeVillers said. “A (deputy attorney general) is going to pick up the phone if you’re a confirmed U.S. attorney. I think that’s fair to say.”

No confirmed U.S. attorney since early 2021

The federal prosecutor’s office in Cleveland is currently run by First Assistant Michelle Baeppler. She’s the second non-Senate-confirmed leader in the office since Justin Herdman resigned on Jan. 8, 2021, shortly after President Joe Biden took office.

Biden’s nominee, Marisa Darden, withdrew from the position in May 2022 before setting foot in the office — and after the Senate confirmed her. An Associated Press story published months later said she attended a lavish party thrown by a corrupt U.S. Drug Enforcement Administration agent, who worked in tandem with drug cartels he was supposed to be investigating.

Many expected Biden to appoint a new U.S. attorney in Cleveland by the end of January. It hasn’t happened, leaving the office without a confirmed leader for more than two years.

Drop in charges

The recent stretch without a confirmed U.S. attorney also coincided with a steep drop in new criminal charges last year, according to a report from the federal judiciary released earlier this month.

Federal prosecutors in northern Ohio charged 926 people during the court’s fiscal year, from September 2021 to September 2022— a 24.6% drop from the previous year. That’s triple the rate of the national drop of about 8%.

“That’s a lot,” DeVillers said. “Yeah, I don’t know what the deal with that is.”

The report also showed that drug and gun cases made up 73% of the cases filed in northern Ohio; in southern Ohio, those cases made up 64%.

A handful of the drug cases were tied to organized trafficking groups or dealers linked to overdose deaths. Most, however, stemmed from police officers who arrested people after finding drugs in their cars during traffic stops.

Similarly, no major gun-related cases were filed in northern Ohio. Again, most came from officers making traffic stops and finding felons with weapons.

Those cases are typically easy to prosecute. Investigations into gun-possession cases are usually minimal and pale in comparison to the complicated work that went into the cases against East Cleveland police and the cryptocurrency kiosks.

‘Clout’ required to handle East Cleveland police cases

The FBI’s two-year investigation into East Cleveland police so far has landed indictments against 16 current and former officers in a department that typically has about 40. O’Malley called the incidents an “appalling” pattern of brutality, civil-rights abuses and corruption. More indictments could be coming as the investigation continues, officials said.

FBI agents, relying in part on body-camera footage, accused officers of punching, kicking, stomping and beating people who had their hands up or otherwise surrendered to officers. Two officers pleaded guilty to bribery in another case in which they took payments while in uniform in front of the police station. The city’s former police chief, Scott Gardner, faces tax and theft charges.

Both DeVillers and Richman said a Senate-confirmed U.S. attorney would be crucial in deciding to prosecute the FBI cases against East Cleveland.

While most decisions on prosecutions are made by the district-level federal prosecutor, the U.S. attorney general’s office in Washington selects which civil-rights cases to pursue. U.S. attorneys lobby for those cases to the Justice Department officials.

“You have more standing with the DOJ as a confirmed U.S. attorney for those cases,” DeVillers said.

Richman agreed.

“I think when you’re dealing with police officers that has the kind of sensitivity that a Senate-confirmed U.S. attorney might deal with in different ways than a first assistant might because of the clout and political ties ones developed through the process of getting nominated and confirmed,” Richman said.

‘Immense’ cryptocurrency case spanned several states

The cryptocurrency case, even more so than East Cleveland, carries the characteristics of a federal prosecution, DeVillers said.

The Secret Service led a two-year investigation that spanned 36 states, involved the seizure of 52 cryptocurrency kiosks, a raid in Illinois and arrests in Florida and Chicago. More than 100 officers from 24 federal and local law enforcement agencies helped in the case.

O’Malley called the investigation “immense.” He said Bitcoin of America, one of the largest cryptocurrency kiosk operators in the country, took some $3.5 million from dozens of people while “deceiving” state regulators and customers about its operation.

The company is accused of operating without a license and keeping 20% of money deposited in the kiosks without telling customers. Those who lost money included eight mostly elderly victims who were scammed via robocalls or emails. Scammers used the money to fund neo-Nazis and Russian organized crime, authorities said. One elderly person lost $2.7 million, officials said.

The company president, his father, an associate and the company itself were charged in a racketeering case in Cuyahoga County Common Pleas Court.

“Yeah, that seems weird,” DeVillers said of the case landing with the county prosecutor. “Especially when you’re talking about different states, that sounds like something that usually goes federal.”

O’Malley said he likes working with federal agencies and taking on their cases. He said he had confidence in his staff that it would be able to prosecute them.

“We know what we’re doing is right for the citizens we represent in these particular cases,” O’Malley said. “We’re proud to do them.”

Adam Ferrise covers federal courts at cleveland.com and The Plain Dealer. You can find his work here .

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