In an extremely rare development, a federal judge dismissed a case Friday against a contractor standing trial on charges of paying kickbacks to the Bloomingdale Township highway boss in exchange for work that in some cases was never performed.
In acquitting Debra Fazio of wire fraud, U.S. District Judge Matthew Kennelly ruled prosecutors failed to prove Fazio had knowledge of the scheme or intentionally participated in it.
It’s virtually unheard of for a criminal defendant at the Dirksen U.S. Courthouse to have a judge dismiss an indictment while the jury is still hearing evidence, particularly in a public corruption case.
Fazio’s attorney, Heather Winslow, said in a statement to the Tribune on Friday that they were thankful for the judge’s ruling.
“We are fully aware that this type of dismissal is rare,” Winslow said. “It was the right decision in this case.”
A spokesman for the U.S. attorney’s office did not immediately respond to a call seeking comment.
Meanwhile, the trial continued Friday for Fazio’s boyfriend and co-defendant, Mario Giannini, who was accused of being far more involved in the scheme than Fazio. Giannini was expected to testify in his own defense Friday afternoon.
The stunning development came after Robert Czernek, the former elected highway commissioner for Bloomingdale Township, testified earlier this week that he conspired for years to take more than $700,000 in kickbacks from Bloomingdale-based Bulldog Earth Movers Inc. in exchange for work that, in many cases, was never performed.
Czernek, 71, pleaded guilty earlier this year to one count of honest-services wire fraud and agreed to cooperate against Fazio, who owns Bulldog, and Giannini, who is a longtime employee.
Czernek told jurors on Wednesday that Giannini first proposed the kickback scheme during a visit to the township quarry a few months after Czernek was appointed as highway commissioner in 2012.
“He said, ‘We can make some money on this,’” Czernek testified.
Czernek told the jury that over the next eight years, he used his official position to approve more than $700,000 in payments for stone delivery, dump-leveling and storm sewer invoices submitted by Bulldog Earth Movers.
As part of the scheme, the invoices had been artificially inflated by overcharging for the stone and billing for hours of sewer and dump-leveling work that was never performed, according to Czernek.
He concealed the fraud by leaving handwritten notes for Giannini in various secluded places on Bloomingdale Township Highway Department property, as well as in a barbecue grill at Giannini’s home.
The notes included a description of the work and number of hours purportedly spent by Bulldog on various projects. Fazio later submitted invoices to the township that repeated Czernek’s notes word for word, according to his testimony.
One note shown to the jury on Wednesday had been scribbled out on a scratchpad with numbers indicating loads of stone. At the top were the words “All you” and the number 3,575. At the bottom was another figure, 9,850, with the word “Split.”
“That ‘All you’ meant that (Giannini) would get that $3,575,” Czernek testified. He said for the $9,850 figure, “split” meant they would each take an equal cut.
In order to conceal the extra money from his wife, Czernek told Giannini to have the kickbacks paid by checks written to an old trucking company he owned, Tri-State Express, according to his testimony.
Czernek testified the scheme continued almost unabated for his entire time in office. The only exception was 2013, an election year, when it was agreed to pause the kickbacks because Czernek “did not want to draw any scrutiny,” he said.
On cross-examination, lawyers for Fazio and Giannini attempted to hammer away at Czernek’s credibility, getting him to acknowledge he’d at first tried to deceive investigators about some of his financial transactions. He was also asked repeatedly about what breaks he hoped to get in his own case in exchange for his cooperation.
“Are you hoping you will avoid prison altogether?” Winslow asked at one point.
Czernek replied, “There are no guarantees.”
Defense attorneys also questioned Czernek about why he held onto his job and six-figure salary for nearly six months after he was indicted in August 2020. Czernek said he was “never asked to resign.”
“You were never asked to resign?” attorney Susan Pavlow asked. “Mr. Czernek, you admitted to defrauding the people of Bloomingdale Township. Certainly the decent thing to do would have been to stop taking a paycheck?”
“I was still working,” Czernek said.
In pleading guilty, Czernek agreed to forfeit assets seized as part of the investigation, including about $28,000 in cash, a 1981 Corvette, a 2014 Lexus RX 350 and a 1966 Buick Wildcat.
The jury is expected to hear closing arguments in Giannini’s case and begin deliberations on Monday.