JAMES C. DIMORA, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
No. 18-4260
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
August 31, 2020
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 20a0287p.06. Argued: April 16, 2020. Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:10-cr-00387-1; 1:17-cv-01288—Sara E. Lioi, District Judge.
Before: MERRITT, THAPAR, and LARSEN, Circuit Judges.
COUNSEL
ARGUED: David E. Mills, THE MILLS LAW OFFICE LLC, Cleveland, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: David E. Mills, THE MILLS LAW OFFICE LLC, Cleveland, Ohio, Philip S. Kushner, KUSHNER & HAMED CO., L.P.A., Cleveland, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee.
The court delivered a PER CURIAM opinion. MERRITT, J. (pp. 15-17), delivered a separate dissenting opinion.
PER CURIAM. In 2012, a federal jury convicted James Dimora of numerous bribery-related offenses committed during his tenure on the Board of County Commissioners for Cuyahoga County, Ohio. Four years later, in McDonnell v. United States, 136 S. Ct. 2355 (2016), the Supreme Court gave a narrow construction to a key element included within several of those offenses. Dimora then petitioned to vacate his convictions under
I.
From 1998 until 2010, Dimora served as one of three elected commissioners on the
In 2007, the FBI launched an investigation into public corruption in Cuyahoga County. The investigation revealed that Dimora had received over $250,000 in gifts (or as the FBI and jury would later conclude, bribes) from individuals with business before the County. These gifts included home renovations, expensive dinners, trips to Las Vegas, and encounters with prostitutes. At the same time, Dimora had used his position as County Commissioner to help the gift givers in various ways. The investigation concluded that he had corruptly influenced the awarding of County contracts and grants, the hiring of County employees, the results of at least one County election, and the outcome of civil litigation in County and municipal courts. Dimora‘s “influence” on these matters ranged from casting formal votes as Commissioner to calling, meeting, and pressuring other relevant officials.
A federal grand jury indicted Dimora on thirty-four counts in September of 2011. The indictment charged seventeen counts of Hobbs Act conspiracy and Hobbs Act offenses under
Dimora‘s trial lasted for thirty-seven days. The government‘s star witness was Frank Russo, who served as County Auditor when Dimora was Commissioner. Russo testified that he and Dimora maintained an elaborate network of “sponsors” who financed their social activities and provided them with gifts in exchange for “personal attention” on matters pending before the County. These matters ranged from “a daughter getting a parking ticket” to “a son wanting a [County] job” to “a brother ... wanting a contract [with the County].”
The government also presented testimony from the so-called “sponsors.” For example, Ferris Kleem—a local contractor and businessman—testified that he had provided Dimora with dinners, jewelry, a television and refrigerator, and a trip to Las Vegas that included flights, a hotel suite, gambling money, and an encounter with a prostitute. Kleem explained that he
Several other sponsors testified as well. Their testimony shared a similar theme: each had provided Dimora with substantial gifts with the hope and expectation that he would later use his influence to help them with County business; and Dimora did, in fact, deliver on that expectation for each of them. As one sponsor testified regarding Dimora and Russo, “they helped me; I helped them.”
Two components of Dimora‘s defense are relevant here. First, Dimora sought to introduce ethics reports in which he disclosed that he had received unspecified gifts valued at more than $75 from most of the sponsors who testified. These reports, he argued, would show that he had not acted with a corrupt intent. But, after the government objected, the district court ruled that the reports were inadmissible. The court concluded that the reports contained “hearsay statements by Mr. Dimora” and their admission would be “tantamount to permitting [Dimora] to testify without being cross-examined.” Additionally, the court believed that the reports would be “very confusing” to the jury. The ethics reports, consequently, were excluded at trial.
Second, Dimora attempted to show that any favors he provided to the sponsors were insufficient to support a bribery conviction.2 Under the bribery statutes, the government needed to prove that Dimora had agreed to commit an “official act” in exchange for items of value. See
The district court rejected Dimora‘s proposed instructions. Instead, the court adopted the following language:
The term “official act” includes any decision or action on any question, matter, cause, suit, proceeding, or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official‘s official capacity, or in such official‘s place of
trust or profit. Official acts include the decisions or actions generally expected of the public official. In addition, “official action” includes the exercise of both formal official influence (such as a public official‘s votes) and informal official influence (such as a public official‘s influence on other public officials). The term “official act” does not include actions taken in a personal or non-official capacity, such as actions taken as a political party leader.
R. 735-1, PageID 16988-89 (emphasis added). Dimora objected, arguing that this definition was “too broad.” The district court overruled that objection and the above definition was included in the court‘s jury instructions at the end of trial.
The jury convicted Dimora on thirty-three of the thirty-four counts, including all of the bribery charges. After trial, Dimora moved for a new trial.4 Relevant here, he argued that the district court had erred by (i) instructing the jury to use an overly broad definition of “official acts,” and (ii) excluding his state ethics reports at trial. The district court denied Dimora‘s motion.
Dimora reiterated those same two arguments on appeal. United States v. Dimora, 750 F.3d 619, 624-30 (6th Cir. 2014). Our court rejected the jury-instruction claim, concluding that the “instructions fairly trace[d] the line between permissible gifts and impermissible bribes.” Id. at 625. We agreed, however, that the district court erred when it ruled that the ethics reports were inadmissible hearsay. Id. at 628. Yet because we concluded that “overwhelming evidence” showed that Dimora had “made phone calls and held meetings on the bribers’ behalf,” we held that the district court‘s error was harmless and affirmed Dimora‘s convictions. Id. at 628-30. But see id. at 632-33 (Merritt, J., dissenting).
Two years later, the Supreme Court construed the term “official act” to exclude most phone calls and meetings. See McDonnell, 136 S. Ct. at 2367-68. McDonnell involved the former governor of Virginia who, like Dimora, had been charged with various bribery offenses, including Hobbs Act extortion and honest services fraud. Id. at 2365. And like here, the trial court in McDonnell had instructed the jury that “official acts” include any “acts that a public official customarily performs.” Compare id. at 2366, with R. 735-1, PageID 16988-89 (defining official acts to include “decisions or actions generally expected of the public official“). The Supreme Court vacated McDonnell‘s convictions, concluding that constitutional concerns and the statutory text required a narrow reading of the term “official act.” See McDonnell, 136 S. Ct. at 2367-73, 2375. “[S]etting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.‘” Id. at 2368. Instead, the Court held that “official acts” are limited to “formal exercise[s] of governmental power.” Id.
Dimora filed a petition to vacate his conviction under
II.
We review the district court‘s denial of a
whether the instructional error “had a substantial and injurious effect or influence on the ... jury‘s verdict.” Griffin, 330 F.3d at 736; see also O‘Neal v. McAninch, 513 U.S. 432, 437-38 (1995). Finally, if we conclude that the instructional error by itself was harmless, we must determine whether the “cumulative effect” of the instructional error and the evidentiary error (which we recognized on direct appeal) entitles Dimora to relief. See Schledwitz v. United States, 169 F.3d 1003, 1016 (6th Cir. 1999).6
A.
We begin with the merits of Dimora‘s instructional claim. A trial court‘s jury instructions must, as a whole, “accurately ... reflect the law.” United States v. Geisen, 612 F.3d 471, 485 (6th Cir. 2010) (citation omitted); see also United States v. Silver, 864 F.3d 102, 118 (2d Cir. 2017) (“[A] jury instruction [is] erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.” (quotation marks omitted)). Dimora argues that the trial court‘s instructions misstated the law by allowing the jury to “convict [him] for conduct that was not unlawful.” We agree.
An “official act” is defined as any “decision or action” on any “question, matter, cause, suit, proceeding or controversy” pending before a public official.7 See
have “made a decision or t[aken] an action,” or “agreed to do so,” on that official issue. Id. (quoting McDonnell, 136 S. Ct. at 2368).
Informal acts—like merely “setting up a meeting, calling another public official, or hosting an event“—fail both prongs of that test. See McDonnell, 136 S. Ct. at 2368-70. Under the first prong, “a typical meeting, telephone call, or event arranged by a public official” does not qualify as a “question, matter, cause, suit, proceeding or controversy.” Id. at 2368. Instead, the statutory terms “connote a formal exercise of governmental power, such as a lawsuit, hearing, or administrative determination.” Id. And under the second prong, “hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a ‘decision or action.‘” Id. at 2370 (emphasis added). “Something more is required,” such as (a) “using [an] official position to exert pressure on another official to perform an ‘official act‘” or (b) “us[ing] [an] official position to provide advice to another official, knowing or intending that such advice will form the basis for an ‘official act.‘” Id.
Given this complexity, the Supreme Court held in McDonnell that three clarifying instructions are needed to prevent a jury from convicting the defendant for lawful conduct. Id. at 2374-75. First, the trial court should “instruct[] the jury that it must identify a ‘question, matter, cause, suit, proceeding or controversy’ involving the formal exercise of governmental power.” Id. at 2374 (emphasis added). Second, the trial court should “instruct[] the jury that the pertinent ‘question, matter, cause, suit, proceeding or controversy’ must be something specific and focused that is ‘pending’ or ‘may by law be brought before any public official.‘” Id. Third, the trial court should “instruct[] the jury that merely arranging a meeting or hosting an event to discuss a matter does not count as a decision or action on that matter.” Id. at 2375.
Here, the trial court‘s instructions (understandably) did not contain those clarifications. Instead, in addition to the statutory definition, the trial court offered three clarifying instructions of its own:
[1] Official acts include the decisions or actions generally expected of the public official. [2] In addition, “official action” includes the exercise of both formal official influence (such as a public official‘s votes) and informal official influence (such as a public official‘s influence on other public officials). [3] The term “official act” does not include actions taken in a personal or non-official capacity, such as actions taken as a political party leader.
R. 725-1, PageID 16989.
The government claims that these clarifications “addressed McDonnell‘s concerns using different language.” It points primarily to the second sentence above, which told the jury that “‘official action’ includes the exercise of both formal official influence (such as a public official‘s votes) and informal official influence (such as a public official‘s influence on other public officials).” According to the government, this instruction “limited official action to formal exercises of official influence such as voting on a matter and defined qualifying informal official influence
That interpretation is wishful thinking. The district court told the jury that official action ”includes” the exertion of “informal official influence (such as a public official‘s influence on other public officials).” R. 735-1, PageID 16989 (emphases added). The government claims that this statement somehow “limited” the definition of official action to formal exercises of power and the pressuring of other officials to perform official acts—both of which are still proper after McDonnell. But the words “such as” and “includes” do not carry that sort of limiting effect. Instead, the jury was free to follow the district court‘s preceding statement that official acts include all “actions generally expected of the public official.” And, indeed, at closing, the government explicitly asked the jury to do so:
So let‘s start again with the law, and specifically the law on official acts. ... [Y]our jury instructions say that “An official act is any decision or action expected by a public official,” any decision or any action. ... It can be informal. And think about all the different informal things that public officials do ... They hold meetings. They direct their staff. ... Commissioners do more than just vote. Commissioners have meetings with people in the business community. Commissioners place calls to other public officials. Anything commissioners do because they‘re a commissioner—for example, because he‘s the commissioner, he can tell Renee Strong to schedule a meeting. ... Those are official acts.
R. 1046, PageID 30469-70 (emphasis added). The breadth of the government‘s interpretation at closing reveals the lack of any meaningful limitation in the instructions; and the absence of that limitation is precisely why the instructions “fail[ed] accurately to reflect the law.” Geisen, 612 F.3d at 485 (citation omitted).
McDonnell rejected instructions that were very similar to the trial court‘s instructions here. See 136 S. Ct. at 2373-74. In McDonnell, the trial court had told the jury that official acts “include acts that a public official customarily performs” and actions taken “to exercise influence or achieve an end.” Id. at 2373. The Supreme Court held that those instructions were erroneous because they “lacked important qualifications” and were “significantly overinclusive.” Id. at 2374. The same is true here. The instructions at Dimora‘s trial defined official acts as any “actions generally expected of the public official” including “the exercise of ... informal official influence” over other public officials. We conclude that those instructions are similarly overinclusive and lacking in important qualifications.
Persuasive authority from the Second and Third Circuits supports this conclusion. In the wake of McDonnell, both courts have invalidated convictions based on jury instructions similar to those used by the trial court here. See Silver, 864 F.3d at 118; United States v. Skelos, 707 F. App‘x 733, 736 (2d Cir. 2017); United States v. Fattah, 914 F.3d 112, 152-54, 189 (3d Cir. 2019). For example, in Silver, the instructions stated that “[o]fficial action includes any action taken or to be taken under color of official authority.” 864 F.3d at 112 (alteration in original) (emphasis omitted). And in Skelos, the instructions stated that official acts “include acts customarily performed by a public official with a particular position,” 707 F. App‘x at 736. In both cases, the Second Circuit held that McDonnell had rendered those instructions erroneous. See Silver, 864 F.3d at 112; Skelos, 707 F. App‘x at 736. Similarly, in Fattah, the Third Circuit held that instructions were erroneous because “the jury was not instructed that they had to place [the defendant‘s] efforts on one side or the other of th[e] divide” between “permissible attempts to express support” and “impermissible attempts to pressure” another official. Fattah, 914 F.3d at 156.
The government points to the First Circuit‘s decision in Woodward v. United States, 905 F.3d 40, 45 (1st Cir. 2018), which held that a trial court‘s pre-McDonnell instructions had “sufficiently captured” McDonnell‘s concerns. But, as Woodward acknowledged, the instructions given in that case were “not comparable” to the instructions in cases like Silver. Id. Nor are they comparable here. The trial court in Woodward had narrowly defined official acts as “any decision or action in the enactment of legislation.” Id. (emphasis added). By tying the definition to the enactment of legislation, the trial court had “substantially satisf[ied] McDonnell‘s definition of ‘official act.‘” Id. Here, however, the trial court‘s instructions imposed no such constraint. The instructions defined official acts as any action “generally expected of the public official.” Just like the instructions in Silver, Skelos, and Fattah, this definition was “significantly overinclusive.” See McDonnell, 136 S. Ct. at 2373-74. Although we do not fault the trial court for failing to anticipate McDonnell, we conclude that its instructions were erroneous in light of that decision.
B.
That still leaves the question of harmlessness. An instructional error warrants habeas relief only if it “had a substantial and injurious effect or influence [o]n ... the jury‘s verdict.” See Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). That standard requires more than just a “reasonable possibility” that the error was harmful. Davis v. Ayala, 576 U.S. 257, 268 (2015). A habeas court cannot require the government to undertake “the arduous task of retrying a defendant based on mere speculation that the defendant was prejudiced by trial error.” Id. (alterations adopted) (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998) (per curiam)). But, at the same time, “[t]he inquiry cannot be merely whether there was enough [evidence] to support the result.” O‘Neal v. McAninch, 513 U.S. 432, 438 (1995) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Instead, the Supreme Court has directed us to ask: “Do I, the judge, think that the error substantially influenced the jury‘s decision?” Id. at 436. If the answer is “yes” or the court is in “grave doubt” about the error‘s harmlessness, the conviction cannot stand. Id. at 437.
The district court recognized these principles but erred in their application. First, the court repeatedly relied on evidence
Second, the court repeatedly pointed back to its belief that the instructions had been adequate to conclude that any error was harmless. See, e.g., R. 1196, PageID 33174 (“Applying the Court‘s instructions, a rational juror would have concluded that offering a letter of recommendation for a friend‘s daughter [was insufficient]“); id., PageID 33167 (“Still, the Court‘s charge would have informed the jury that such an act did not qualify under the law.“); id., PageID 33178 (“Because the jury was properly instructed on these counts ... there is no prejudice and no reason to justify vacating these counts.“); id., PageID 33187 (“Those few acts that would no longer pass muster under McDonnell would have been disregarded by a rational juror applying the Court‘s instructions.“). By bootstrapping its harmlessness finding to the purported validity of the instructions, the district court rested its harmless-error analysis on a faulty premise.
Rather than attempting the harmless-error analysis ourselves, however, we believe the more “prudent” course is to remand for the district court to conduct the proper analysis in the first instance. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010). The Supreme Court has tasked lower courts with asking, “Do I, the judge, think that the error substantially influenced the jury‘s decision?” O‘Neal, 513 U.S. at 436. Here, Dimora was convicted after a thirty-seven-day trial, in which the jury heard testimony from more than sixty witnesses and deliberated on thirty-four different counts. On this record, we believe the district court—which also presided over Dimora‘s trial—is far better equipped to determine whether the instructional error substantially influenced the jury‘s verdict. Accordingly, we remand for the district court to apply properly the harmless-error standard in the first instance.
But our remand is limited. The COA excluded any review of Dimora‘s convictions for bribery concerning programs receiving federal funds under
Moreover, not all of the counts before us require further analysis on remand. With respect to Counts 8, 22, and 23, the government relied exclusively on votes Dimora had cast as commissioner to
C.
Finally, because we do not decide whether the instructional error was harmless with respect to most of the counts before us, we also do not decide whether the “cumulative effect” of the instructional and evidentiary errors entitles Dimora to relief. See United States v. Parker, 997 F.2d 219, 221 (6th Cir. 1993). We note, however, that we are uncertain whether this theory of prejudice is available to
***
For the foregoing reasons we VACATE the district court‘s judgment, DENY Dimora‘s request to expand the scope of the COA, and REMAND for further proceedings consistent with this opinion.
DISSENT
MERRITT, Circuit Judge, dissenting. I respectfully dissent from my colleagues’ decision to remand this case to the district court for it to conduct its own harmless-error analysis. I would vacate all counts contained in the Certificate of Appealability and remand for a new trial before a properly instructed jury.
There is no question that the district court erroneously instructed the jury in light of McDonnell v. United States, 136 S. Ct. 2355 (2016). It is also clear that the erroneous instructions “had a substantial and injurious effect or influence [o]n ... the jury‘s verdict” because the instructions allowed the jury to convict Dimora based on lawful conduct. See Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); see also McDonnell, 136 S. Ct. at 2375 (“Because the jury was not correctly instructed on the meaning of ‘official act,’ ... we cannot conclude that the errors in the jury instructions were ‘harmless beyond a reasonable doubt.‘“); United States v. Fattah, 914 F.3d 112, 155 (3d Cir. 2019) (“Because the jury may have convicted Fattah for conduct that is not unlawful, we cannot conclude that the error in the jury instruction was harmless beyond a reasonable doubt ....“); United States v. Silver, 864 F.3d 102, 124 (2d Cir. 2017) (concluding that the erroneous jury instructions were not a harmless error).
The overwhelming majority of the counts involve both acts that remain “official”
I would vacate all counts in this appeal, including the counts that involve only acts that remain “official” under McDonnell, because of the district court‘s erroneous exclusion of the ethics reports. See United States v. Dimora, 750 F.3d 619, 632-33 (6th Cir. 2014) (Merritt, J., dissenting). I explained in my earlier dissent:
Subjective intent is the keystone of bribery. The influence of money in politics is growing by leaps and bounds, and the subjective intent of the public official receiving the money is perhaps the last and only distinguishing feature between criminal ‘quid pro quo bribery’ and permissible ‘ingratiation.’ ... The exchange for money for ‘ingratiation and access is not corruption’ at all; indeed, the exchange is so essential to the foundation of democracy that it is protected by the First Amendment.
Id. at 632 (internal citations omitted). The ethics reports were paramount to Dimora‘s defense that he did not have the necessary intent for conviction. Now that actions qualifying as “official” are much more limited under McDonnell, the ability for Dimora to present to a jury that he disclosed gifts from his alleged bribers is even more important to his defense and his receiving a fair trial. Additionally, the treatment of the ethics reports by the prosecution, defense
“To what extent the reports would have influenced the jury, I cannot and need not know. As appellate judges, we are not qualified to stack inference on inference for a jury. It is our job to preserve trial by jury[.]” Id. That is why I would vacate all of Dimora‘s convictions in this appeal and remand for a new trial, because the only proper fact-finding body for these issues is a properly instructed jury that considers Dimora‘s ethics reports—not appellate judges and not a district court reviewing a 30,000 page record of a 37-day trial it heard 8 years ago.
I respectfully dissent.