PORTLAND — A Seattle energy consultant accused of forgery in connection with a major Oregon solar power project is seeking to have the charges dismissed, arguing that the state committed prosecutorial misconduct and that the statute of limitations for bringing an indictment had expired.
Martin Shain was the lead consultant on Oregon’s $24 million Solar by Degree project. Prosecutors say he created a fake invoice from a fictional subcontractor to help secure nearly $12 million in tax credits from the Oregon Department of Energy.
Last year, state and federal investigators persuaded a witness in the case to make a secretly recorded call to Shain in hopes of getting him to incriminate himself, The Oregonian/OregonLive reported. The investigators fed the caller questions, but Shain acknowledged no wrongdoing.
In a motion filed last week, his lawyer argued that the call constituted prosecutorial misconduct — an attempt to question him without counsel, even though the state had already been informed that he was represented by an attorney.
Ken Lerner, a Portland criminal defense attorney not involved in the case, called the investigators’ actions clear-cut misconduct. “It’s a violation of his assertion of right to counsel,” Lerner said.
The Oregon Justice Department said it “will oppose the motion in court,” but it otherwise declined to comment.
The Solar by Degree program built six large solar arrays on university campuses across the state, projects that were completed in 2013 and 2014. But investigators launched their inquiry in March 2015 after The Oregonian/OregonLive reported that backers had submitted phony documents to qualify for $11.8 million in state tax credits.
The forgery charges hang on two documents submitted to the Oregon Department of Energy in September 2012 to obtain an extension of the project’s eligibility for state tax credits. To get that extension, backers needed to prove construction was underway by April 15, 2011.
The documents suggested that the project’s initial developer had spent more than $200,000 by that date, and Oregon officials granted the extension. But the chief executive of the development firm, Ryan Davies, said he never signed the letter in question, and a company that was allegedly supplying foundations cited in the documents didn’t exist.
Shain’s lawyer, Jim McDermott, says his client doesn’t dispute that the documents are phony. But he said Shain denies creating them or submitting them to the Oregon Department of Energy.
But Shain told The Oregonian/OregonLive in January 2015 that he had delivered the proof of construction to the state in person, the news organization said.
In September 2015, investigators enlisted Bob Simonton, a former employee of the Oregon University System, in the effort to get Shain to incriminate himself. Instead, Shain repeatedly denied wrongdoing.
“You need to tell me, Martin, did you have anything to do with creating this letter?” Simonton asked, according to a transcript filed in court.
Shain responded: “NO. NO. NO. And we have so much information to show all of the work and the costs that was expended.”
“They got their project,” Shain said at one point. “They’re built to specs. They operate. They’re perfect. No one gives a (expletive). They’re trying to find a fall guy, and it makes me sick to my stomach.”
In a separate motion, Shain’s lawyer asked the court to dismiss the charges, claiming the Justice Department filed its case after the three-year statute of limitations had expired. Shain was indicted in August on two counts of first-degree forgery after an 18-month investigation.
The state argues that the statute was extended because Shain lives in the Seattle area. Prosecutors argue that the clock doesn’t run on the statute of limitations any time “the accused is not an inhabitant of or usually a resident within this state.”
Shain’s attorney argues that language refers to suspects who leave the state to avoid prosecution, which wasn’t the case with Shain.
“The Oregon Department of Justice’s many lawyers and investigators had ready access to Mr. Shain in Oregon during the entire three-year statutory period,” McDermott said.
The state also has filed a civil case against Shain looking to recover the $11.8 million, plus damages.
