Eric Smith contends the criminal charges against him should be dropped because they stem from mere “political fighting” with other county officials, his alleged illicit expenditures properly aided law enforcement and he did not financially benefit.
The embattled former Macomb County prosecutor’s attorney, John Dakmak, filed a legal brief Thursday, a day before Visiting Judge Cynthia Arvant of 41B District Court decides whether to maintain 10 felony charges against Smith for his alleged illicit expenditure of tens of thousands of dollars from accounts maintained by him instead of the county treasurer. The most serious charge, operating a criminal enterprise, aka racketeering, is punishable by up to 20 years in prison.
If Arvant maintains any or all of the charges today, Smith will be bound over to Macomb County Circuit Court for a potential trial.
Dakmak argues in the 21-page brief the funds were properly used to enhance law enforcement, as required by law, and benefitted his office, not Smith, in its efforts to prosecute criminals.
“All of these expenditures assisted the MCPO in meeting its obligation as the chief law enforcement entity in Macomb County,” Dakmak wrote. “The MCPO was not the victim of its own spending of forfeiture funds towards crime prevention and enforcement.
“What the People have failed to see is that the unsettled issues of control and ownership of the funds, and the authority to spend the funds, set against the backdrop of the unique nature of these funds, shows political fighting between county departments, not the actions of a criminal enterprise.”
Smith, 55, is accused of using money mostly from a drunken driving forfeitures on $30,000 donations to churches, thousands of dollars in donations to a child advocacy center, office parties and retirement and funeral gifts for employees, iPads for his children’s school, a $1,000 Yearbook ad at his alma mater, Chippewa Valley High School, and a $7,000 security system at his Macomb Township home, among others.
Dakmak says Smith did not financially benefit from the expenditures, which is a requirement of racketeering.
“The enterprise spent money,” he says. “There was never a scheme for financial gain. …. It was the MCPO’s money to spend for its use in enforcing criminal laws.”
Smith resigned in March 2020 after 15 years in office within days of state Attorney General Dana Nessel filing the charges, which include five counts of embezzlement by a public official, misconduct by a public official, tampering with evidence, accessory after the fact and conspiracy to commit forgery. The embezzlement charge carries a 10-year maximum penalty.
The expenditures in question took place from 2012 to 2018 during which about $1.8 million was generated mostly by the forfeiture of vehicles of drunken drivers, who paid $900 or $1,800 to retrieve their vehicle.
Also charged is Derek Miller, his chief of operations; Ben Liston, his retired chief of staff; and William Weber, owner of Weber Security in Mount Clemens.
Both charged with felonies, Liston pleaded guilty to three misdemeanors and Weber pleaded to a single misdemeanor. Both testified against Smith at the preliminary examination, which began in July and lasted several days over several months with about 14 witnesses taking the stand.
Liston surrendered his law license and was ordered to pay nearly $16,000 in restitution.
Weber, who installed Smith’s home-security system, must pay nearly $24,000 in restitution for failing to complete a project for the Prosecutor’s Office for which he was paid from the off-the-books account.
Miller remains employed by the office but is on paid administrative leave. He faces charges of misconduct in office and conspiracy to commit a legal act in an illegal manner, both punishable by up to five years in prison.
Arvant will also rule on Miller’s charges.
Dakmak argues virtually all of the spending enhanced law enforcement in one way or another.
He says holiday parties and gifts for certain employees who retired or lost a family member helped maintain morale in the office.
“That occasional token of appreciation certainly does factor into enhancing the overall effectiveness of the office,” Dakmak wrote.
He notes many of the churches that received the $500 donations wrote thank you letters and indicated they would use the money to help prevent homelessness or provide substance-abuse counseling, which he contends could help prevent crime.
Regarding contributions to schools, Dakmak points to the testimony of a school principal who “concluded that education helps students become active and contributing citizens to a society.”
Regarding the charge related to the 2012 installation of the security system at Smith’s home, Dakmak alleges it falls outside of the six-year statute of limitations so cannot be prosecuted, and its absence reduces the required number of felony acts to constitute racketeering.
But even if the charge remains, Dakmak contends it was a legitimate expenditure for law enforcement purposes because Smith learned of a potential threat against him in 2012 when a man with a pending charge was stopped by a sheriff’s deputy on a bicycle near his home.
“Threats to the prosecutor are a serious violation of criminal laws,” he says. “A detection of such a threat aids in the enforcement of those and all other criminal laws.”
Dakmak alleges the whole case is more about a dispute since many county officials knew about Smith keeping the funds before the Treasurer’s Office claimed discovery in 2017 and in 2018, along with county finance officials, began attempting to force Smith to turn over the dollars, which he initially resisted to do but ultimately did so in November 2018. The fund was created in about 2006 and, according to testimony of former county commissioner Robert Leonetti, was discussed at board meetings in 2016. Smith’s former chief of staff and chief of operations James Langtry testified he and Smith answered questions about the funds at board meetings over the years.
Assistant Macomb County Corporation Counsel Frank Krycia in his testimony “had to concede the issue (over whether had to turn over the funds to the treasurer) was not a settled one,” Dakmak wrote.
Several officials involved in the dispute met in 2018 at the Attorney General’s Office in Lansing. Attorney General officials told “the parties present to work it out themselves,” according to testimony, Dakmak says.
He says the vagueness over the issue was demonstrated last year when state lawmaker Doug Wozniak of Shelby Township introduced bills “to clarify which county department exercises control over these forfeiture funds.”
The Attorney General’s Office review of the issue and the lawmaker’s “attempt to modify the relevant statutory language shows plainly that the People’s certainty on this issue is anything but certain,” he says.
In a separate matter, Smith pleaded guilty to obstruction of justice in federal court for attempting to cover up his illicit expenditure of $70,000 in campaign funds in 2020. He is scheduled to be sentenced Feb. 16 by U.S. District Judge Linda Parker.
