Robert Cordaro v. United States
933 F.3d 232
| 3rd Cir. | 2019Background
- Robert Cordaro, a Lackawanna County commissioner, was convicted in 2011 of bribery (18 U.S.C. § 666), Hobbs Act extortion, racketeering, and related offenses for soliciting and receiving thousands of dollars from county contractors in exchange for using his official position to protect/secure county-related contracts.
- Evidence at trial: repeated cash and check payments from two engineering firms (Acker Associates and Highland Associates) delivered through intermediaries (Al Hughes and co-defendant Munchak); meetings in which Cordaro promised contractors they could keep contracts in exchange for contributions; active intervention to keep or secure particular contracts (e.g., Taylor Bridge, COLTS intermodal center).
- Trial jury was instructed that convictions required an "official act" defined broadly to include informal influence and altering official acts; Cordaro was convicted and sentenced to 132 months.
- After McDonnell v. United States (136 S. Ct. 2355 (2016)) narrowed the meaning of "official act," Cordaro sought collateral relief via a § 2241 habeas petition (invoking the § 2255 saving clause), asserting actual innocence because his conduct no longer constituted an "official act."
- The district court concluded it had jurisdiction under § 2241, but denied relief because Cordaro failed the Schlup actual‑innocence gateway: he did not show it was more likely than not that no reasonable juror, properly instructed under McDonnell, would have convicted him. This appeal followed.
Issues
| Issue | Cordaro's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether § 2241 provides jurisdiction under the § 2255 saving clause for McDonnell‑based actual innocence claim | McDonnell narrowed "official act" so his conduct is noncriminal; he lacked an earlier opportunity to raise McDonnell in § 2255 | § 2241 is available when § 2255 is inadequate; McDonnell applies retroactively | Court: § 2241 jurisdiction proper; Cordaro asserted a colorable actual‑innocence claim and had no earlier § 2255 opportunity |
| Standard for relief on intervening statutory‑interpretation actual‑innocence claim | Relief available if it is more likely than not no reasonable juror properly instructed under McDonnell would convict | Government: apply Schlup gateway; petitioner must show that probability standard and has not met it | Court: applies Schlup gateway; requires showing it is more likely than not that no reasonable properly instructed juror would convict |
| Whether Cordaro's contract‑related conduct qualifies as McDonnell "official acts" | Cordaro: contracts were with independent authorities, meetings/contacts were routine and noncriminal under McDonnell; impeachment evidence undermines witnesses | Government: contracts are discrete "matters," Cordaro agreed to and took actions to influence outcomes; payments show quid pro quo | Court: Contracts and Cordaro’s interventions/evidence of agreements/payments make it probable some reasonable juror would find qualifying "official acts," so Cordaro failed to prove actual innocence |
| Effect of post‑trial impeachment evidence against government witnesses on the Schlup showing | New indictments/conviction of key witnesses (Hughes, McLaine) undermine credibility and would alter juror verdicts | Government: impeachment is marginal because jury already heard corruption evidence; new evidence unlikely to change verdict under McDonnell standard | Court: New impeachment does not make it more likely than not that no reasonable juror would convict; does not meet gateway |
Key Cases Cited
- McDonnell v. United States, 136 S. Ct. 2355 (2016) (defines "official act" as requiring a "matter" and a decision or agreement to take action on that matter)
- Bruce v. Warden Lewisburg USP, 868 F.3d 170 (3d Cir. 2017) (§ 2241 saving‑clause pathway and application of Schlup standard for intervening statutory changes)
- Dorsainvil v. United States, 119 F.3d 245 (3d Cir. 1997) (§ 2255 inadequacy and resort to § 2241 in unusual circumstances)
- Schlup v. Delo, 513 U.S. 298 (1995) (actual‑innocence gateway standard: more likely than not that no reasonable juror would convict)
- House v. Bell, 547 U.S. 518 (2006) (discusses high threshold for freestanding actual‑innocence claims)
- United States v. Repak, 852 F.3d 230 (3d Cir. 2017) (awarding of government contracts can constitute actionable influence under bribery/extortion law)