United States v. Alexander Sittenfeld aka P.G. Sittenfeld
Case Information
*1 Before: BUSH, NALBANDIAN, and MURPHY, Circuit Judges.
_________________
COUNSEL ARGUED: Yaakov M. Roth, JONES DAY, Washington, D.C., for Appellant. Matthew Singer, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee. ON BRIEF: Yaakov M. Roth, Harry S. Graver, Ryan M. Proctor, JONES DAY, Washington, D.C., James M. Burnham, KING STREET LEGAL, PLLC, Washington, D.C., for Appellant. Matthew Singer, Alexis J. Zouhary, Emily N. Glatfelter, Megan Gaffney Painter, UNITED STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee. L. Bradfield Hughes, PORTER, WRIGHT, MORRIS & ARTHUR, LLP, Columbus, Ohio, Joseph O. Masterman, COOPER LAW PARTNERS, Washington, D.C., Joshua H. Runyan, Patrick F. Linehan, Nicholas P. Silverman, Jennie A. Askew, M. Vito Arethusa, STEPTOE LLP, Washington, D.C., Charles C. Speth, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Steven Garrett Tegrar, DEBEVOISE & PLIMPTON LLP, New York, New York, David A. O’Neil, DEBEVOISE & PLIMPTON LLP, Washington, D.C., John S. Moran, MCGUIRE WOODS, Washington, D.C., for Amici Curiae.
NALBANDIAN, J., delivered the opinion of the court in which MURPHY, J., concurred. MURPHY, J. (pp. 39–52), delivered a separate concurring opinion. BUSH, J. (pp. 53–71), delivered a separate dissenting opinion.
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OPINION
_________________
NALBANDIAN, Circuit Judge. Every day in this country, politicians solicit donations to finance their campaigns. And every day, those same politicians make statements about what they believe in, what they’ve done, and what they promise to do once elected. Sometimes, even often, these solicitations and promises occur in the same place, at the same time. But though this speech and conduct are generally protected by the First Amendment, bribery remains illegal. [1] When the bribery involves money flowing to a politician for his personal use, the crime is straightforward. But when a politician is accused of accepting campaign funds in exchange for the promise of official action, the line becomes blurrier. Still, the Supreme Court tells us there is a line. And Congress and the Court have entrusted juries with discerning between legitimate campaign donations and illegitimate bribes. We must respect that line even in hard cases.
This is one such case. A jury convicted former Cincinnati council member Alexander “P.G.” Sittenfeld of attempted Hobbs Act extortion and federal-program bribery. But this case comes with twists. All the major players, except for Sittenfeld, were working for or with the government—that is, these were paid actors working to incriminate Sittenfeld. And despite nearly every relevant conversation being recorded, the investigation didn’t yield overwhelming evidence. Still, a jury found that Sittenfeld solicited or accepted campaign donations in exchange for his promise to support a property development project. On appeal, Sittenfeld challenges the sufficiency of the evidence against him and argues that his indictment was constructively amended. But neither challenge succeeds, so we AFFIRM.
I.
A. In 2018, Sittenfeld was a Cincinnati city council member who planned to run for mayor. Chinedum Ndukwe was a local developer who sometimes discussed his development projects with Sittenfeld. In September 2018, Sittenfeld called Ndukwe and let him know that “the majority of the developers in Cincinnati [we]re going to be giving [him] ten grand.” R. 266, Trial Tr. Day 6, pp. 59–60, PageID 6242–43. Sittenfeld then asked Ndukwe, “[C]an I count on you for ten?” Id. Although Ndukwe had known Sittenfeld since 2010, and had consistently donated to Sittenfeld’s past campaigns, Ndukwe claimed that this fundraising request was “jarring.” at 60–61, PageID 6243–44. And what Sittenfeld didn’t know was that Ndukwe was working for the FBI at the time of that conversation.
Earlier in January 2018, the FBI had flagged Ndukwe as a possible source for some of their ongoing public-corruption cases. Ndukwe had previously given “money orders and cashier’s checks to local politicians in other individuals’ names,” so FBI agent Nathan Holbrook pursued Ndukwe as an asset. R. 264, Trial Tr. Day 4, p. 84, PageID 5888. By mid-March 2018, Ndukwe had agreed to provide information to the FBI in exchange for a commitment by the government not to pursue a criminal investigation against him. From there, Ndukwe began informing on Sittenfeld to Holbrook, starting with his September conversation with Sittenfeld. At that point, Holbrook told Ndukwe to record all his calls with Sittenfeld.
To catch Sittenfeld taking a bribe, the FBI introduced undercover agents, “Rob” and “Brian,” who pretended to be investors in Ndukwe’s real estate development project at 435 Elm Street in downtown Cincinnati. As it stood, the 435 Elm property was dilapidated, costing Cincinnati taxpayers hundreds of thousands of dollars each year to maintain. Ndukwe wanted to create a mixed-use development project on the site and had bought a leasehold mortgage note from the bank and air rights for it. But Sittenfeld already had 435 Elm on his radar because Ndukwe had discussed the project with him earlier in 2018. And separately in 2017, someone else had asked Sittenfeld about 435 Elm and he had directed them to the City of Cincinnati.
Early in the investigation, Ndukwe had three important conversations with Sittenfeld, each recorded. The first call was on October 26, 2018, when Ndukwe told Sittenfeld that Rob and Brian would be a source of capital for 435 Elm. They discussed setting up a meeting with Sittenfeld so Rob and Brian could donate to the campaign before campaign-finance rules changed on November 6, 2018. Ndukwe agreed to try to schedule something before that date.
A second, more pivotal conversation took place on October 30, 2018. Ndukwe broke some bad news—Rob wouldn’t be in town until November 7, 2018. Instead, Ndukwe said he could try to “get some of [his] friends up in Columbus” to support Sittenfeld. R. 312, Appeal Exs., p. 8, PageID 7551. Ndukwe explained that he was trying not to donate in his own name, and Sittenfeld encouraged him to round up donations from others:
Sittenfeld: Just so, just so you know like, look I have, you know I, I love what you do as someone revitalizing our city creating jobs. I am fond of you as a friend. I also have like you know obligations to do the things I need to do to be a successful candidate so.
Ndukwe: Absolutely.
Sittenfeld: So, but what that means is I don’t really get like, if if you say look I don’t want to support you in the name of Chinedum Ndukwe, but some guy I’ve never met from Columbus is going to use a coup, you know, you know [your] network are going to a, round up a bunch of LLC checks. Like that’s great. I actually don’t care. But I mean the one thing I will say is like, you know I mean, you don’t want me to like be like ‘ hey Chin like love you but can’t ’ you know like, you know, I mean like, you know like. I, I, I want people to support me, that’s like . . .
Ndukwe: Absolutely.
Sittenfeld: . . . if a candidate doesn’t want people to support them, they’re a shitty dumb candidate . . .
Ndukwe: Yeah, right, yeah, right.
Sittenfeld: . . . and you know I’ve been (UI [unintelligible]) a lot of people have come through in a really big way that’s been awesome so far and I would love, I would love for you to be one of those people too.
Ndukwe: I hear ya. I hear ya. So we’ll, we’ll figure, we’ll, we’ll make sure, trust me, we’ll, we’ll, we’ll make something happen sooner than later too. Um (UI).
Sittenfeld: Well can you (UI), Can you even do it before the LLC thing?
Ndukwe: I don’t know, let me, let me, let me, let me touch base with Jay again and see how, how we can make it work. Uhm I mean honestly just with, with everybody I’ve been trying to, you know, the other thing is these guys have a ton of LLCs. But I, I know that he’s not going to be in town . . . so when is the drop dead date? Is it the sixth?
Sittenfeld: They can’t, those guys can’t use more than one LLC for each of them after, after the sixth, yeah. That’s why, so just to let you know North American has done twelve in LLCs, Uptown has done ten, Medpace has done ten, Model has done eight. Uhm I, I need to go down like the whole list.
Ndukwe: Yeah, yeah, yeah.
Sittenfeld: You know Eli has done five. So because people are like, you know, we got to get this done before this (UI) option goes away.
Ndukwe: Yeah, yeah, yeah, for sure, for sure. Well let me, let me see— Sittenfeld: Even, even if you were able to like, you know, Columbus people, these guys round up five LLCs before next Tuesday it’d be big.
Ndukwe: Yeah, okay, okay. All right, let me, let go to work on that. Let me go to work on that.
Id. at 8–9, PageID 7551–52 (ellipses in original) (emphasis added). Ndukwe and Sittenfeld then set up a time to meet with Rob. Just before the end of the call, Sittenfeld reiterated, “[Y]ou’re gonna deliver the goods before next Tuesday,” and Ndukwe responded, “All right, let me go to work on that.” Id. at 10, PageID 7553.
At trial, witnesses offered different interpretations of the “love you but can’t” comment. Ndukwe testified that he understood it to mean “that whether you donate or don’t donate,” it would “have an impact on” Sittenfeld’s “advocacy” for him. R. 266, Trial Tr. Day 6, p. 64, PageID 6247. In other words, Ndukwe thought it “was very clear that if I donated, he was going to support and be supportive in my efforts, and if I didn’t, he wasn’t going to be supportive.” Sittenfeld, however, claimed that he was explaining, “I’m only going to be around here if I’m successful in this race.” R. 269, Trial Tr. Day 10, p. 110, PageID 6746. Due to term limits, Sittenfeld was in his last city council term, so to continue “advanc[ing] projects that were good for the city” he had to become mayor. Id.
After reviewing that call, the FBI instructed Ndukwe to talk with Sittenfeld again and “make a very clear and obvious offer of money in exchange for votes by Mr. Sittenfeld on 435 Elm.” R. 263, Trial Tr. Day 3, p. 55, PageID 5700. Ndukwe followed that advice in a third call on November 2, 2018. Ndukwe told Sittenfeld that the November 6 deadline would impact the donations he could solicit, but he could provide “close to twenty thousand” in “the next couple of weeks.” R. 312, Appeal Exs., p. 13, PageID 7556. Ndukwe then asked Sittenfeld to agree to a quid pro quo:
Ndukwe: . . . so and then for, for, and then for this meeting with Rob next week, I’m pretty sure he can get you ten this week. You know the biggest thing is, you know, if we do the ten, I mean, they’re gonna want to know that when it comes time to vote on 435 Elm, like whenever that, I don’t know if it’s next year, two years, three years, that it’s gonna be a yes vote, you know, without, without a doubt . I’ve shared that with them, that hey [I’ve] known PG for years, all this stuff, but they’re like all right we’ll get his attention.
Sittenfeld: I mean, obv-, as you know, obviously nothing can be illegal like . . . illegally nothing can be a quid, quid quo pro [sic]. And I know that’s not what you’re saying either. But what I . . .
Ndukwe: Yeah.
Sittenfeld: . . . can say is that I’m always super pro-development and revitalization of especially our urban core.
Ndukwe: Okay, no, I hear ya. I hear ya. And so they’re, he’ll probably come out—
Sittenfeld: And we can, we, we, we can discuss that more in person.
Ndukwe: Okay, okay. My guy, perfect, perfect.
Sittenfeld: But I’m not, I’m not sure, I’m not they’re, I, in seven years I have voted in favor of every single development deal that’s ever been put in front of me so. at 13–14, PageID 7556–57 (ellipses in original) (emphasis added).
At trial, Sittenfeld described this conversation as surprising, because he “had never once known [Ndukwe] to do something” that “sounded untoward or unethical.” R. 269, Trial Tr. Day 10, p. 111, PageID 6747. After Sittenfeld expressed his confidence that Ndukwe did not mean to propose a quid pro quo and Ndukwe agreed, Sittenfeld “thought that put the issue to bed.” Id. at 112, PageID 6748. Sittenfeld also claimed he thought Ndukwe “was probably misrepresenting” Rob. Id. Regardless, Ndukwe testified that he still thought that Sittenfeld’s “true intentions” involved bribery. See R. 266, Trial Tr. Day 6, p. 106, PageID 6289.
On November 7, 2018, Sittenfeld met with Rob and Ndukwe at Nada, a Cincinnati restaurant. There, Rob spoke about the investment group he represented. Ndukwe talked about his plans for 435 Elm and his idea of getting it from the city for a dollar or “a minimal amount.” R. 312, Appeal Exs., pp. 21–23, PageID 7564–66. Sittenfeld said he could “certainly shepherd the votes” and “promise the votes.” Id. at 24, 30, PageID 7567, 7573. Sittenfeld described the project as “a strategic development,” given that it was across the street from the convention center and “easy to support.” Id. at 27, 30, PageID 7570, 7573.
Later, still at Nada, Sittenfeld transitioned to fundraising. He noted that Rob would be “making good bets and good investments” by supporting him. Id. at 35, PageID 7578. Sittenfeld showed Rob three slides on his laptop, illustrating his broad support in Cincinnati. And Sittenfeld claimed that successful developers and business leaders had “already placed their bet with [him],” so “if anyone d[id] that going forward, they’re in good company.” Id. at 37, PageID 7580.
After hearing Sittenfeld’s pitch, Rob transitioned back to 435 Elm and explained that “we wanna try to set 435 up being veto-proof you know.” Id. at 38, PageID 7581. Sittenfeld responded that he could “move more votes than any single other person,” even the mayor, but he did not think the mayor would oppose the deal. at 38–39, PageID 7581–82.
Sittenfeld and Rob then headed to Rob’s nearby apartment. Rob explained that his investors liked to donate anonymously and so tried to set up a bribe: So [Chin] doesn’t want his name on anything.
UC Rob: Sittenfeld: Right.
UC Rob: Um you know we usually try to figure out a creative way to do something.
Sittenfeld: Right, understood.
UC Rob: Um, but at the same time, like we want to help, we want to make sure, we want to really get this thing, [Mayor] Cranley, I would feel comfortable tellin’ my guys like hey we’re we’re in . . .
Sittenfeld: Right.
UC Rob: . . . this deal with Chin [Ndukwe] if I know we’re Cranley-proof. Sittenfeld: Yeah.
UC Rob: Um and so with that like Chin told me like hey you know I want to try to get uh P.G. 20,000 . . .
Sittenfeld: Right.
UC Rob: . . . and I’m like, hey man I I’m I’m if if if we can get this deal done, like fuckin’ let’s do it.
Sittenfeld: Yeah.
UC Rob: You know and so.
Sittenfeld: Do you guys . . .
UC Rob: What is the best way, what’s the best way for us to get that to you, to get that deal? You know what I mean, like . . .
Sittenfeld: Yeah yeah yeah. I’m just, do you guys know that he’s gonna try and veto it?
Id. at 44, PageID 7587 (ellipses in original). Rob said Cranley was fine with the project so long as Ndukwe was not the face of it. Sittenfeld replied, “Honestly . . . I can sit here and say I can deliver the votes.” Id. at 45, PageID 7588. He said, “I can get it done.” Id.
Rob then jumped back to money. He said he had $10,000 cash on him and it would be easiest to just give it to Sittenfeld. So the two talked about the best way for Sittenfeld to accept the donation. At one point, Sittenfeld asked, “[W]hose name can stuff be in?” Id. at p. 46, PageID 7589. Rob said, “[W]e can come up with some names.” Later, Sittenfeld talked about the “technicality” of attributing a donation to an individual and having that person “agree that that’s where it came from.” Id. at 47, PageID 7590. [2] Sittenfeld did not want to “send up signals,” so he got advice from his political consultant who was helping him with fundraising at the time. Id. at 48–49, PageID 7591–92.
In the end, Sittenfeld decided not to take the cash. Instead, he and Rob arranged to transfer the funds through money orders. Sittenfeld explained that he did not want to “cause a headache” and preferred “to proceed” in this way “out of an abundance of caution.” Id. at 50, PageID 7593. Rob offered to mail the money orders to Ndukwe instead of directly to Sittenfeld. At the end of their meeting Rob said, “If you can pull those votes together that’s awesome,” and Sittenfeld responded, “Yeah . . . we definitely can.” Id. at 53, PageID 7596.
But Sittenfeld changed his mind. On November 21, 2018, Sittenfeld told Rob he could not take the donation through money orders. As an alternative, Sittenfeld proposed that Rob give to his political action committee (PAC) since “no one [wa]s going to be poking around . . . to find your names on it.” Id. at 55, PageID 7598. [3]
Sittenfeld, Rob, and Brian met a week later. Sittenfeld asked about 435 Elm and expressed his readiness “to shepherd the votes as soon as it gets to us at Council.” Id. at 59, PageID 7602. The FBI agents gave Sittenfeld two checks worth $5,000, payable to the PAC. Sittenfeld assured Rob that Sittenfeld’s “name [wa]s not connected to [the PAC] in any way” and that “[n]o one w[ould] ever know [about] this.” at 60, PageID 7603. But on December 3, 2018, Sittenfeld spoke with Rob on the phone and alerted him to the fact that the PAC couldn’t accept the checks he’d sent because they were from corporations. The PAC could only accept checks from LLCs.
Money finally changed hands when Sittenfeld met with Rob and Brian on December 17, 2018. Rob gave Sittenfeld four checks in total worth $20,000. Each was from a different LLC. Those checks were later deposited into Sittenfeld’s PAC. At the same meeting, Sittenfeld again talked about 435 Elm. He expressed confidence that it would “happen” and emphasized his influence: “[D]on’t let these be my famous last words, but, um, I can always get a vote to my left or a vote to my right.” Id. at 70, PageID 7613. That same day Sittenfeld left a voicemail message for Ndukwe; he was “looking forward to doing what [he could] to help get 435 across the finish line, so never hesitate to reach out.” R. 263, Trial Tr. Day 3, p. 135, PageID 5780.
Sittenfeld, Rob, and Brian stayed in touch during 2019 and talked about 435 Elm several more times. [4] Sittenfeld continued to accept more money from Rob. To justify his engagement with Rob and Brian, Sittenfeld said at trial that he engaged with people “from all walks of life.” R. 269, Trial Tr. Day 10, p. 121, PageID 6757. He saw Brian and Rob as “backing something that was good for the city,” and he trusted Ndukwe. Id.
B.
In November 2020, a grand jury indicted Sittenfeld on six counts. Counts 1 and 2 charged honest-services wire fraud, in violation of 18 U.S.C. §§ 1343 and 1346. Counts 3 and 5 alleged bribery concerning a program receiving federal funds, in violation of 18 U.S.C. § 666. And counts 4 and 6 charged attempted Hobbs Act extortion, in violation of 18 U.S.C. § 1951. Each charge was tied to a date range, with counts 3 and 4 limited to activities between “about September 21, 2018, and December 17, 2018.” [5]
Count 3 of the indictment charged Sittenfeld with obtaining money from Rob: “[T]o wit, the defendant . . . corruptly solicited and demanded, and accepted and agreed to accept, payments to PAC for his benefit from UCE-1 . . . .” R. 3, Indictment, pp. 16–17, PageID 41–42. Count 4 had similar language: “[T]o wit, the defendant . . . solicited, obtained, agreed to accept, accepted, and received payments to PAC from UCE-1 . . . .” at p. 17, PageID 42. The parties agree that UCE-1 was Rob. Counts 3 and 4 incorporated by reference Sittenfeld’s calls with Ndukwe on October 26, October 30, and November 2, 2018.
The case went to trial in June 2022. Over the next two weeks, the government played audio and video recordings alongside testimony from Rob, Brian, Ndukwe, Sittenfeld, and other witnesses. For each count, the jury was told that the government had to prove an explicit (but not express) quid pro quo.
For the federal-program bribery counts, the instruction required the jury to find “that Mr. Sittenfeld solicited, demanded, accepted, or agreed to accept a thing of value from another person.” R. 251, Trial Tr. Day 11, pp. 34, 51–52, PageID 4974, 4991–92. And the Hobbs Act instruction required the jury to find “that Mr. Sittenfeld obtained, accepted, agreed to accept, or received property that he was not lawfully entitled to from another person with that person’s consent.” at 38, PageID 4978.
On July 8, 2022, the jury returned a mixed verdict. It convicted Sittenfeld of counts 3 and 4 but acquitted him of the remaining charges. Sittenfeld moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure and for a new trial under Rule 33. On the motion for judgment of acquittal, he claimed the government had not proven the existence of a “quid pro quo,” or an “agreed-upon official act,” and that the two statutes under which he was convicted were unconstitutional. R. 283, Op. & Order, pp. 2–3, PageID 7137–38. The court denied each claim.
The court also denied Sittenfeld’s motion for a new trial. He argued that the verdict was against the manifest weight of the evidence, that the government constructively amended his indictment, and that the district judge had issued erroneous jury instructions. The court again rejected each claim. This was the first time Sittenfeld had argued that the government exceeded the scope of the indictment. It was also the first time Sittenfeld argued that the jury instructions were erroneous because they suggested counts 3 and 4 could rest on a solicitation of “another person,” not just Rob, as the indictment required.
Ultimately, the district court sentenced Sittenfeld to sixteen months’ imprisonment. [6] He timely appealed. Now he makes two arguments. First, he claims the government did not present sufficient evidence for the jury to find an explicit quid pro quo. Second, he argues that the government constructively amended the indictment. We address each in turn.
II.
We evaluate sufficiency claims de novo, asking “whether, after reviewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Emmons
, 8 F.4th
454, 477–78 (6th Cir. 2021) (internal quotation marks omitted). The evidence “need not remove
every reasonable hypothesis except that of guilt.”
United States v. Sadler
,
A.
Two Supreme Court cases guide our understanding of what the government must prove to show Hobbs Act extortion and federal-program bribery in the campaign-contribution context: McCormick v. United States , 500 U.S. 257 (1991), and Evans v. United States , 504 U.S. 255 (1992). Combined with controlling precedent from our circuit, it’s clear that the government must show that an elected official received campaign donations “in return for an explicit promise or undertaking.” McCormick , 500 U.S. at 273 (Hobbs Act); United States v. Inman , 39 F.4th 357, 365 (6th Cir. 2022) (federal-program bribery). That is, we ask whether the government presented sufficient evidence to show an explicit quid pro quo. Resolving that query turns on the form of the government’s evidence.
First, McCormick explained that proof of a quid pro quo was a prerequisite to a conviction for extortion under the Hobbs Act. In the early 1980s, a member of the West Virginia House of Delegates was convicted for violating the Hobbs Act. He had accepted cash payments, which he claimed were campaign contributions, in exchange for sponsoring legislation. 500 U.S. at 259–60, 268. The court of appeals affirmed his conviction by distinguishing between legal and illegal campaign contributions. Importantly, the appellate court concluded that a contribution could violate the law even without an explicit quid pro quo, so long as they “were never intended to be legitimate campaign contributions.” Id. at 271 (internal quotation marks omitted).
The Supreme Court reversed. It started by acknowledging the practical realities of campaigning: a legislator must finance his race while also engaging in the “everyday business of a legislator,” like supporting legislation and serving his constituents. Id. at 272. “Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done.” Id. Given this close relationship between campaign promises and financing campaigns, the Court made clear that legislators do not commit extortion merely by “act[ing] for the benefit of [their] constituents” shortly before or after soliciting or receiving campaign contributions. Id.
But the Court was unwilling to say that it was “impossible for an elected official to commit extortion in the course of financing” his election. Id. at 273. Instead, he can commit extortion “under color of official right, but only if ” he receives payments in exchange for an “ explicit promise or undertaking” to “perform or not to perform an official act.” Id. (emphasis added). In such a case, the official effectively asserts that “his official conduct will be controlled by the terms of the promise or undertaking.” Id. (emphasis added). Thus “proof of a quid pro quo [is] essential” to a conviction. Id. (internal quotation marks omitted).
The Supreme Court clarified
McCormick
the next year in
Evans
.
Evans directly answered whether “passive acceptance” of a benefit—rather than an affirmative step toward fulfillment of the quid pro quo—sufficed for a Hobbs Act extortion conviction. Id. at 266–67. The Court answered yes for someone acting “under color of official right,” at least where there was evidence that the official knew that the payment was in exchange for some official action. Id. at 261, 265.
Importantly, we have understood
Evans
to clarify that
McCormick
’s quid pro quo is
“satisfied by something short of a formalized and thoroughly articulated contractual
arrangement,” so “merely knowing the payment was made in return for official acts is enough.”
United States v. Blandford
,
To synthesize
Evans
and
McCormick
,
Blandford
relied on Justice Kennedy’s
Evans
concurrence. He provided a crucial fifth vote and reiterated that the quid pro quo was an
“essential element of the offense.”
Evans
,
We interpreted Justice Kennedy’s concurrence as a “gloss on the
McCormick
Court’s use
of the word ‘explicit’ to qualify [the]
quid pro quo
requirement.”
Blandford
, 33 F.3d at 696.
Explicit “speaks not to the form of the agreement,” but to the “degree to which the payor and
payee were aware of its terms.” Thus, we read
Evans
to mean that “by ‘explicit’
McCormick
did not mean ‘express,’”
id.
, and therefore we do not require unambiguous evidence, so long as
the jury can infer the content of the quid pro quo.
See United States v. Terry
,
But the government need not prove that the parties ever spoke about or wrote down those
terms. “What is needed is an agreement, full stop, which can be formal or informal, written or
oral.”
Id.
at 613. To be sure, like an ordinary contract, there must be an exchange—payment “in
return for an explicit promise.”
McCormick
,
As with any contract, the public official must bind himself with some additional promise
that the gift has induced. And as with any contract, that means the public official must receive
some consideration for his promise.
See
Oliver Wendell Holmes,
The Common Law
293–94
(1881);
Terry
,
Thus, state of mind is at the heart of the inquiry and we rely on objective manifestations
of intent to show a defendant’s subjective mindset. Restatement (2d) of Contracts § 71 cmt. b;
see also Evans
,
B.
Sittenfeld attempts to recast McCormick and Evans to require explicit evidence of an agreement and unambiguous evidence of the quid pro quo. According to Sittenfeld, the evidence is insufficient as a matter of law if it is susceptible to a “legitimate explanation”; holding otherwise would conflict with “the entire point ” behind McCormick . Appellant Br. at 18. He doesn’t believe a jury can handle the responsibility of deciphering the “common sense” understanding of a remark’s “implication.” at 18, 28.
But Sittenfeld’s view of McCormick is too limited. Campaign contributions will almost always have an inherent “legitimate alternative explanation.” Terry , 707 F.3d at 613. As the Supreme Court has already recognized,
to hold that legislators commit . . . extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents . . . is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another . . . “under color of official right.”
McCormick
, 500 U.S. at 272 (quoting 18 U.S.C. § 1951(b)(2)). This is also why “matters of
intent are for the jury to consider.”
Inman
, 39 F.4th at 365 (quoting
McCormick
, 500 U.S. at
270). And we have held that the factfinder can parse words and actions to discern the intent
behind them, even with respect to campaign contributions.
Terry
,
And explicit evidence is also not a requirement. “Explicit” relates to the quid pro quo, not the evidence. Granted, “explicit” means “[n]ot obscure or ambiguous, having no disguised meaning or reservation. Clear in understanding .” Blandford , 33 F.3d at 696 n.13 (quoting Black’s Law Dictionary 579 (6th ed. 1990) (alteration in original)). This means that the government must prove a meeting of the minds between the parties and that the agreement must be unambiguous from their perspective. But the existence of that agreement is governed by the reasonable doubt standard and can be proved with circumstantial evidence. [7]
Sittenfeld’s attempts to recast
McCormick
and
Evans
also have no foundation in the law.
One of Sittenfeld’s own citations confirms the point. He relies on
United States v. Benjamin
—a
district court opinion—as a “prime example” where the government lacked sufficient evidence
because the connection between the quid and the quo “must be shown by something more than
mere implication.” No. 21-CR-706, 2022 WL 17417038, at *12 (S.D.N.Y. Dec. 5, 2022).
But the Second Circuit reversed.
Benjamin
,
C.
We hold that the evidence construed in the government’s favor was enough to convict Sittenfeld of federal-program bribery and attempted Hobbs Act extortion. Two conversations, in context, support the jury’s verdict on both counts.
First, Sittenfeld arguably solicited a bribe on October 30, 2018, when he said, “[Y]ou don’t want me to like be like ‘hey Chin like love you but can’t.’” R. 312, Appeal Exs., pp. 8–9, PageID 7551–52. Sittenfeld may have had an innocent explanation for that conversation—but the jury could reject it if it found Ndukwe’s explanation more persuasive. “[L]ove you but can’t” could have reasonably implied, as Ndukwe testified, that Sittenfeld would advocate for Ndukwe’s development projects only if he rounded up campaign donations. Seen in that light, Sittenfeld offered a corrupt bargain, and Ndukwe accepted. Ndukwe’s response to the solicitation was “trust me . . . we’ll make something happen sooner than later too.” Id. at 9, PageID 7552. And at the end of the call Sittenfeld said, “And then you’re gonna deliver the goods before next Tuesday,” and Ndukwe agreed: “All right, let me go to work on that.” at 10, PageID 7553.
A reasonable juror perhaps could have seen this conversation as sufficient to convict on its own—at least with respect to count 3, which required only proof of solicitation. Even if they didn’t reach a bargain, Sittenfeld plainly asked for money and implied that negative consequences could result if Ndukwe didn’t come through for him. Viewing this call in the light most favorable to the government, Sittenfeld was threatening to use his office against Ndukwe.
But we need not decide whether the call alone sufficed because this evidence doesn’t stand alone. The government had even stronger evidence to support the convictions for both counts 3 and 4. It argues that Sittenfeld agreed to accept donations on November 7, 2018, when he knew that Rob was offering him a bribe. Rob said that Ndukwe wanted “to get [Sittenfeld $]20,000” and Rob had agreed—“if we can get this deal done, like fuckin’ let’s do it.” Id. at p. 44, PageID 7587. Rob then asked explicitly, “[W]hat’s the best way for us to get that to you, to get that deal? You know what I mean.” Id. Sittenfeld didn’t answer the question—saying only “[y]eah yeah yeah.” Id. Instead, Sittenfeld pivoted to ask whether Mayor Cranley would veto the 435 Elm project. He claims that he “missed the corrupt pitch.” Appellant Br. at 31. [9] But the jury could have concluded otherwise. Video damningly shows Sittenfeld nodding along as he listened to Rob, and he responded to Rob’s question “[y]eah yeah yeah.” R. 312, Appeal Exs., p. 44, PageID 7587. Nor did Sittenfeld dodge Rob’s question about the “best way” to “get that deal.” A little later in the conversation, Sittenfeld assured Rob, “I can sit here and say I can deliver the votes.” Id. at 45, PageID 7588. And he reiterated: “I can get it done.” Id. Rob responded, “Okay” and explained that he had “brought 10,000 cash with [him].” And then the two talked at length about how Sittenfeld could accept the donation.
When we look at the surrounding circumstantial evidence, three more points lead us to conclude that a jury could have reasonably believed that Sittenfeld understood Rob’s intentions for a quid pro quo and still agreed to accept the money. First, construed in the government’s favor, Sittenfeld’s earlier conversations with Ndukwe laid important groundwork and offered significant context for Sittenfeld’s later interactions with Rob. Second, Sittenfeld obsessed over the form of Rob’s donation yet demonstrated none of the same concern for its substance. And finally, Rob and Sittenfeld worked hard to keep the donations secret.
Start first with the groundwork Ndukwe laid with Sittenfeld in their phone calls. On October 30, Sittenfeld arguably agreed to accept a bribe. Then on November 2, Ndukwe presented Rob as someone who wanted to trade money for a “yes vote” on 435 Elm. Sittenfeld understood that Ndukwe’s words, at least at face value, asked for a quid pro quo. So Sittenfeld had reason to believe that at the November 7 meeting, Rob might bribe him—a bribe Sittenfeld later worked hard to, and did, accept.
This context also helps explain why Sittenfeld could promise support for 435 Elm before making his fundraising pitch. Based on the October 30 call, Sittenfeld knew that Ndukwe would pay him a bribe. And based on the November 2 call, he knew that Rob would provide the funds. A reasonable jury could conclude that “reciprocity was understood” when he promised to shepherd votes for 435 Elm. See United States v. Inzunza , 638 F.3d 1006, 1015–16 (9th Cir. 2011).
And during the November 7 meeting, Sittenfeld and Rob showed apparent disregard for the true source of the donations. Sittenfeld asked, “[W]hose name can stuff be in?” and Rob replied, “[W]e can come up with some names.” R. 312 , Appeal Exs., p. 46, PageID 7589. Later, Sittenfeld talked about the “technicality” of attributing a donation to an individual and having that person “agree that that’s where it came from.” Id. at 47, PageID 7590. At the same time, Sittenfeld wanted to avoid “signals” of impropriety. See id. at 48, PageID 7591. And though he insisted that donations take the correct form, he did not care whether Rob used straw donors.
And finally, Rob and Sittenfeld wanted to keep the donation secret. Rob made it clear
that in general Ndukwe did not “want his name on anything.”
Id.
at 44, PageID 7587. Rob
wanted to avoid mailing money orders directly to Sittenfeld. And Sittenfeld later assured Rob
and Brian that “[n]o one w[ould] ever know” about their PAC donation. at 60, PageID 7603.
Legal efforts to hide the source of a campaign donation represent fairly weak evidence alone, but
they offer some probative value as to the participant’s intent. Criminals “rarely seek to
perpetrate felonies before larger-than-necessary audiences.”
United States v. Correia
, 55 F.4th
12, 32 (1st Cir. 2022) (quoting
United States v. Patch
,
The three cases Sittenfeld cites also do not persuade us. We can distinguish two on their
facts. In
United States v. Menendez
, the best evidence for a quid pro quo was mere closeness in
time between a contribution and an official action.
Based on all the evidence, a reasonable juror could conclude that Sittenfeld understood exactly what Rob was offering and agreed to accept a bribe on November 7. Even if some juries might disagree, that does not change the fact that Sittenfeld’s conviction was not unreasonable. So Sittenfeld’s sufficiency-of-the-evidence claim fails.
III.
Sittenfeld also alleges his indictment was constructively amended. He argues that given the trial evidence, jury instructions, and closing arguments, the jury could have convicted him on both counts 3 and 4 based solely on the October 30, 2018, call with Ndukwe. But because both counts specify the bribe came from Rob , not “another person” (like Ndukwe) as the jury instructions allowed, Sittenfeld argues reliance on this call was impermissible. The government counters that the October 30 call was featured in the indictment within the overall charged bribery scheme and therefore poses no constructive-amendment problem. Since Sittenfeld failed to timely object, the government also maintains that we should review for plain error. Although we agree that the jury instructions, standing alone, were problematic, Sittenfeld must show more to establish a constructive amendment, which he hasn’t done.
A.
The Fifth Amendment ensures that “[n]o person shall be held to answer for a . . . crime,
unless on a presentment or indictment of a Grand Jury.” U.S. Const. amend V. So a defendant
has a right to be “heard on the specific charges of which he is accused” in the indictment.
Dunn
v. United States
, 442 U.S. 100, 106 (1979). Inherent in this constitutional protection is a
limitation that only the grand jury that first issued an indictment can later amend it.
Stirone v.
United States
,
Whether an indictment has been amended is a flexible inquiry dependent upon how an
alteration arises: actual amendment, constructive amendment, or variance. Actual amendments
arise when the prosecutor “actually changes the text of the indictment.”
United States v. Budd
,
More complicated are constructive amendments. Here the indictment remains
unchanged, but the terms of the indictment are “in effect altered” because events at trial raise a
“substantial likelihood that the defendant may have been convicted of an offense other than the
one charged in the indictment.”
Id.
(quoting
United States v. Smith
,
But we have also recognized the possibility of a constructive amendment “where jury
instructions differ from an indictment, even in the absence of varied evidence,” such that the
effect was to charge the jury on a “separate offense that was not listed in [the] indictment.”
United States v. Kuehne
,
In sum, the defendant carries a heavy burden to prove a constructive amendment. First, we look at whether the jury instructions broaden the indictment, and if so, we must ask whether the evidence also varied from the indictment. If it did, we have a constructive amendment. But if it didn’t, we must ask separately whether those jury instructions were so broad as to have allowed the jury to convict on a different crime—rather than a different means to commit the same crime. That answer, in turn, determines whether the defendant must prove prejudice. With the law clarified, we pivot briefly to determine the appropriate standard of review before addressing the merits of Sittenfeld’s case.
B.
We typically review a challenge based on a constructive amendment de novo.
United
States v. Hynes
,
A party preserves a claim of error by objecting “when the court ruling or order is made or
sought.” Fed. R. Crim. P. 51(b);
see also United States v. Margarita Garcia
, 906 F.3d 1255,
1268–69 (11th Cir. 2018). And the objection must include an indication of the “true basis for his
objection.”
United States v. Bostic
,
Although there may be different ways for a defendant to raise a timely, constructive- amendment objection, Sittenfeld’s post-trial motion was not enough. Thus, plain-error review applies. As we’ve discussed, a constructive amendment typically occurs based on a confluence of events. But whether it’s the combined effect of varied evidence and broad jury instructions or the jury instructions themselves that allow the jury to convict on an unindicted crime, the constructive amendment is apparent once the parties agree on the appropriate instructions. So, at a minimum, the defendant must raise a constructive-amendment claim at the time the jury instructions are agreed upon and on grounds that they would permit the jury to convict based on a constructively amended indictment. [11]
Thus, the jury-instruction conference is a point of no return for the parties. By then, the
parties and the court know exactly what evidence has been admitted. So the defendant can spell
out whether the proposed instructions themselves or their combined effect with the admitted
evidence will permit the jury to convict for something not in the indictment.
See, e.g.
,
Cusmano
,
659 F.2d at 717, 717 n.5. For this reason, courts have repeatedly applied plain error when a
defendant fails to object to the jury instructions and argues on appeal that his indictment was
constructively amended as a result.
See e.g.
,
United States v. Leon
,
Here Sittenfeld could have raised his constructive-amendment claim at the time that the instructions were being finalized but didn’t—a point he doesn’t dispute. Instead, Sittenfeld relies on his objection to the government’s proposed instruction for count 3 in a pretrial filing (and that the same objection was understood to apply to count 4). But that objection argued vagueness, not a possible constructive amendment. These are two distinct grounds. If Sittenfeld intended to A defendant could also bring the problem to the trial court’s attention in a motion for acquittal before the case is submitted to the jury. 3 Wright & Miller § 516 (collecting cases). But the “ grounds for th[e] objection,” are especially important here. Fed. R. Crim. P. 51(b) (emphasis added). That the insufficiency rests on an impermissible amendment to the indictment is a substantively different claim from a general sufficiency-of-the- evidence claim.
It’s for this reason that, although Sittenfeld made a Rule 29 motion for judgment of acquittal, renewed the motion once the defense rested, and renewed the motion again after the jury returned a guilty verdict, he still did not preserve the constructive-amendment claim. At no point did he suggest that the indictment had been constructively amended. Instead, he repeated the more general theory that the government failed to meet its burden of proof on all six counts.
preserve both, he had an obligation to specify as much before the trial court. Bostic , 371 F.3d at 871; R. 98, Prop. Jury Instrs., p. 20, PageID 1043.
The defense also did not raise any objection at the charging conference, which was
intended to “allow the parties to make any objections” to the instructions “for the record.”
R. 272, Trial Tr. Day 9, pp. 2, 7–8, PageID 6931, 6936–37;
United States v. Semrau
, 693 F.3d
510, 527–28 (6th Cir. 2012) (reviewing instructions for plain error when defendant failed to
object after “the court made clear that objections would be ‘sought’ and its ruling would be
‘made,’ or after the jury was charged”);
United States v. Blood
,
That Sittenfeld raised the constructive-amendment question in a post-trial motion does
not change our plain-error conclusion. A post-trial motion is too little, too late.
Margarita
Garcia
,
Applying plain-error review in these situations encourages contemporaneous objection, which ensures that the trial court has an opportunity to “remediate or cure the errors.” Margarita Garcia , 906 F.3d at 1269; Puckett v. United States , 556 U.S. 129, 134 (2009) (“[Plain error] limit[s] appellate-court authority [and] serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them. . . . In the case of an actual or invited procedural error, the district court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome.”); United States v. Jackson , 877 F.3d 231, 236 (6th Cir. 2017) (“Where a defendant has failed to preserve [an] objection by first giving the district court the opportunity to address and remedy it, we review only for plain error.” (internal quotation marks omitted)). After trial, the district judge was no longer able to rectify any problem, so the post-trial motion did not preserve the objection.
Sittenfeld’s other arguments for de novo review also do not persuade us. It’s true we
have said that “there can be no forfeiture where the district court nevertheless addressed the
merits of the issue.”
Cartwright v. United States
,
Finally, on count 4 only, the government claims Sittenfeld invited the jury-instruction
error that is the crux of his constructive-amendment claim. It’s true that we may forgo appellate
review if the defendant invites an error based on his proposed instructions.
United States v.
Howard
, 947 F.3d 936, 944–45 (6th Cir. 2020). And according to the government, because
Sittenfeld contributed to the alleged constructive-amendment problem by suggesting “another
person” instead of Rob’s name in the count 4 instructions, appellate review should be entirely
foreclosed. We decline this invitation. Even when a defendant invites error, “the interests of
justice will typically favor reviewing an argument where the government and the defendant are
equally at fault and the defendant claims a violation of his constitutional rights.”
United States v.
Montgomery
,
The defendant bears the burden of proving whether a constructive amendment or variance
has occurred.
Kuehne
,
C.
To avoid a constructive amendment, Sittenfeld must have been convicted for the specific crimes alleged in the indictment. The government did not rely on varied evidence in the way Cusmano or Stirone discuss, and though the jury instructions were broader than the indictment, this alone is not reversible error. Sittenfeld cannot plainly show that the overly broad instructions resulted in a conviction for another, unindicted crime rather than another means of committing the same crime. So Sittenfeld’s challenge fails.
1.
We start with the indictment, which begins by describing Sittenfeld’s “scheme” through quotes from transcripts of phone calls like the one on October 30, 2018. It also alludes to a series of solicitations beyond the ones listed in the to-wit clauses of each count. That said, the to-wit clauses make clear that Sittenfeld’s innocence or guilt was tied to specific solicitations. Sittenfeld was charged in count 3:
to wit , [Sittenfeld] while a member of Cincinnati City Council, corruptly solicited and demanded, and accepted and agreed to accept, payments to PAC for his benefit from [ Rob ], who was posing as a businessman supporting [435 Elm], while intending to be influenced and rewarded in connection with business, transactions, and series of transactions involving the City of Cincinnati and [435 Elm].
R. 3, Indictment, pp. 16–17, PageID 41–42 (emphasis added). And in count 4:
to wit , [Sittenfeld] solicited, obtained, agreed to accept, accepted, and received payments to PAC from [ Rob ], with [ Rob’s ] consent, knowing the payments were made in exchanged for the defendant’s specific official action in his role as a member of the Cincinnati City Council to further [435 Elm], under color of official right.
Id. at 17, PageID 42 (emphasis added). Emphasizing these clauses, Sittenfeld contends that he can only be validly convicted based on the payments Rob made to his PAC to secure his favor in the 435 Elm project. A conviction based on any phone call or solicitation with Ndukwe is legally insufficient. And he says this is what happened here.
In
Cusmano
, we interpreted a to-wit clause as alleging “only one means of extortion” and
creating a constructive-amendment problem when a different means of extortion was raised at
trial.
Under Cusmano , the to-wit clauses in Sittenfeld’s indictment restricted and confined the charges against him. The government fights the limiting effect of the to-wit clause, theorizing that it can rely on any evidence that appeared earlier in the indictment if it was incorporated into the charged count. But an indictment does not charge everything it describes. An indictment may include significant background information and circumstantial evidence, yet a defendant may justifiably rely on a to-wit clause to particularize the crime. So we reject the government’s contention that we can, in effect, view the entire indictment as one big to-wit clause. [15] This means that despite the indictment’s description of the conversation with Ndukwe, the to-wit clause only charged Sittenfeld with accepting a bribe from Rob—not Ndukwe—and he could reasonably expect that counts 3 and 4 were so limited. Thus, we agree with Sittenfeld that the to-wit clauses in his indictment require his conviction to rest on payments from Rob in exchange for favor on 435 Elm.
2.
Next, we consider the jury instructions. We ask whether they could be read to permit a conviction on grounds broader than what was alleged in the indictment. As we previewed above, the answer is yes.
The court instructed the jury that it could find Sittenfeld guilty on count 3 if it found “that Mr. Sittenfeld solicited, demanded, accepted, or agreed to accept a thing of value from another person .” R. 251, Trial Tr. Day 11, p. 34, PageID 4974 (emphasis added). And the instruction for count 4 required the jury to similarly find “that Mr. Sittenfeld obtained, accepted, agreed to accept, or received property that he was not lawfully entitled to from another person with that person’s consent.” at 38, 51, PageID 4978, 4991 (emphasis added). By referring to “another person” and not specifying Rob—in a case that involved several personalities and several solicitations—the jury instructions failed to clarify that the jury could not convict based on any perceived agreement between Sittenfeld and Ndukwe .
3.
But as we noted above, whether the instructions permit the jury to convict on grounds beyond the indictment does not end the analysis. We still must compare the government’s evidence to the scope of the indictment to see if there was a variance. Though we rejected the government’s theory that the general scheme alleged in the indictment can broaden the scope of a to-wit clause, that question is distinct from whether the trial evidence varied from the indictment. it had come from Rob fundamentally misreads these to-wit clauses. If the government chooses to charge a defendant using a to-wit clause, the government must be prepared to demonstrate the defendant’s guilt accordingly.
On this latter point, we read indictments “as a whole,”
United States v. McAuliffe
, 490
F.3d 526, 531 (6th Cir. 2007), and can consider the “full scope of [the] indictment” to analyze
whether the trial evidence varied from the indictment,
United States v. Bradley
,
For example, in Stirone , the government did not rely on a to-wit clause to cabin the scope of the indictment, but it described specific acts that violated the Hobbs Act. The indictment alleged that the defendant “caused supplies and materials (sand) to move in interstate commerce,” and did “unlawfully obstruct, delay (and) affect interstate commerce between the several states . . . by extortion.” Stirone , 361 U.S. at 213–14. Then, at trial, the district judge allowed the government to admit evidence and to include in the jury instructions reference to the defendant’s interference with steel shipments. at 218–19. The extortion was an essential element of the crime and proving it with an entirely different set of facts (steel vs. sand) effectively allowed the defendant to be convicted of an unindicted crime. Cusmano , 659 F.2d at 719 (alleging the essential element of “extortion” through “threats of economic loss” and proving the alternative means at trial through “wrongful use of force and fear”).
Sittenfeld theorizes that his case is like Stirone and Cusmano . On his view, these cases demonstrate that the government improperly admits varied evidence whenever its evidence is not expressly listed in the to-wit clause. But this represents too limited a view of indictments and Sittenfeld’s case overall. It’s true that once the government describes the “factual basis for an element of the crime, the prosecution may not rest its proof of that element at trial on other facts.” Budd , 496 F.3d at 522 (emphasis added) (internal quotation marks omitted). This still leaves the government with room to make its case before the judge or jury by relying on the specific (relevant) facts it alleges in the indictment’s background about how the defendant committed his crime.
In both Cusmano and Stirone , the government proved facts beyond those alleged in the indictment. That’s not what happened here. Under the indictment’s scheme and alleged manner and means, a series of events between Sittenfeld and Ndukwe resulted in the corrupt solicitation between Sittenfeld and Rob and ended with the transfer of $20,000. It was this latter crime for which Sittenfeld was indicted in the to-wit clause, but that did not foreclose the government from admitting evidence that explained how Sittenfeld and Rob got together—consistent with the indictment. A look to the government’s closing arguments shows how the government hewed to the scheme it alleged in counts 3 and 4.
Start with count 3. The indictment alleged that Sittenfeld solicited, demanded, or agreed to accept a thing of value from Rob. The October 30 phone call may well have provided sufficient evidence for a conviction on count 3. And we acknowledge that when the government discussed count 3 in its closing, [16] it explicitly said that Sittenfeld “corruptly solicited Mr. Ndukwe on October 30th.” R. 251, Trial Tr. Day 11, p. 97, PageID 5037. Clearly the October 30 call was central to the case overall—the relationship between Sittenfeld and Ndukwe set the stage for how Sittenfeld and Rob were connected, as the “scheme” alleged in the indictment suggests.
But talking about the October 30 call wasn’t the government’s final word on count 3. And the indictment reflects that. Instead, the government explained count 3 to the jury by relying on three separate “explicit quid pro quos,” any one of which could sustain the conviction. First, the government cited the October 30 call, then, the November 7 exchange where Rob offered Sittenfeld $20,000 for his PAC, and finally, December 17, when Sittenfeld finally received the $20,000 in exchange for the promise to deliver votes. Id.
And the same is true of count 4. The indictment alleged that Sittenfeld had knowingly obtained or agreed to accept payments from Rob. Again, the October 30 call and its “love you but can’t” were key to the government’s narrative, a point the government acknowledges. And the district court pointed to the call (without distinguishing between counts 3 and 4) as “[p]erhaps the best example” of evidence that “could reasonably be interpreted to give rise to a finding of intent to enter an explicit deal.” R. 283, Op. & Order, pp. 3–4, PageID 7140–41.
But as the government explained the evidence to the jury, it never argued that the October 30 call alone constituted a completed agreement. [17] R. 251, Trial Tr. Day 11, pp. 60–72, PageID 5000–12. Far from relying only on the October 30 call as Sittenfeld suggests, the government explained count 4 to the jury by relying on two other conversations—on November 2 between Ndukwe and Sittenfeld and on November 7 between Sittenfeld and Rob . Id. at 60–72, PageID 5000–12. The government described “the second express quid pro quo in 5 days”—November 2 “money for votes,” and November 7 getting “P.G. $20,000.” at 70, PageID 5010. As we’ve detailed, supra Part II.C., the November 7 interaction with Rob provided the strongest evidence for the government on both counts 3 and 4. Rob agreed to “get [Sittenfeld $]20,000” and promised “if we can get this deal done, like fuckin’ let’s do it.” Rob asked Sittenfeld about the details of getting him the $20,000 and Sittenfeld—rather than offering a direct answer—nodded along to the discussion, saying “Yeah yeah yeah.” As we’ve explained, that whole exchange led to a promise by Sittenfeld: “I can sit here and say I can deliver the votes. . . . I can get it done.” [18] The line between the indictment’s allegations—in the scheme, the manner and means, and the substantive counts—and the government’s evidence and arguments to the jury, is clear and direct. The government did not rely on varied evidence to prove the indicted crimes.
4.
Given that we have broad jury instructions but no varied evidence, neither Cusmano nor Stirone control. That said, the question remains whether a bribery agreement with Ndukwe amounted to a “separate offense” from a bribery agreement with Rob, or whether it represented another way to commit the same crime. See Kuehne , 547 F.3d at 685. If the former, the instructions may have caused a constructive amendment, but if the latter, they would only have caused a variance. [19] Id.
Determining whether a statute sets out multiple offenses or alternative
means
for
committing the same offense is inherently one of statutory interpretation.
Combs
, 369 F.3d at
931 (“The statutory text, legislative history, and requisite proof argue for the . . . perspective that
18 U.S.C. § 924(c) criminalizes two separate offenses . . . .”). We look to two bodies of law to
cabin our inquiry. The first are cases that analyze whether an indictment is “duplicitous.”
Duplicitousness is similarly a search for distinct offenses, because, like constructive
amendments, they threaten a defendant’s Sixth Amendment right to notice of the charges against
of guilt, properly reached its conclusion on [one count], and then through mistake, compromise, or lenity, arrived at
an inconsistent conclusion on the [related] offense.’” (quoting
United States v. Powell
,
[19]
If a variance occurred, we could ask whether Sittenfeld was prejudiced. But he doesn’t make this
argument. Prejudice requires proof that the defendant’s “substantial right[s]” were affected.
Kuehne
, 547 F.3d at
683. With a variance, the defendant’s substantial rights refer to his “ability to defend himself at trial, to the general
fairness of the trial, or to the indictment’s sufficiency to bar subsequent prosecutions.”
Id.
(quoting
United States v.
Hynes
,
Sittenfeld couldn’t make that showing anyway. As we explained supra Part II.C and Part III.C.3, the convictions for both counts 3 and 4 went beyond the October 30 call. And the detail of each phone call and meeting—dates, locations, participants, discussions, and excerpts—are all alleged chronologically and succinctly in the indictment, telling a larger story of the Ndukwe-Rob-Sittenfeld relationship and scheme. Sittenfeld was on notice of every detail that the government planned to (and did) prove at trial. Viewed in this light, Sittenfeld’s Fifth and Sixth Amendment rights to fair notice and a fair trial were properly protected by the grand jury and subsequent indictment.
him and his Fifth Amendment right against double jeopardy.
[20]
See United States v. Davis
, 306
F.3d 398, 415–17 (6th Cir. 2002) (citing 2 Charles Alan Wright & Arthur R. Miller, Fed. Prac.
and Proc. § 142 (3d ed. 1999));
see also Combs
,
The second set of cases grapple with “individuating crimes” in an indictment based on
the defendant’s victims.
[21]
Some contexts indicate that different victims constitute separate
crimes. We count murders by “counting bodies.”
United States v. Newell
,
But a different victim does not always indicate a different crime. For example, the
victim’s identity was “irrelevant” to a conviction for transporting money obtained by fraud in
interstate commerce.
United States v. Von Stoll
,
These cases highlight that whether a different victim constitutes a different crime is statute-specific and therefore crime-specific. As for Sittenfeld, we look to the two statutes (§ 666 and the Hobbs Act) to identify if different victims—or more specifically the corrupt counterparty—makes for different offenses or a different means to commit the same offense.
Start with § 666.
[23]
We permit the government to aggregate transactions to reach the
$5,000 jurisdictional minimum when they are “part of a single scheme.”
United States v.
Sanderson
, 966 F.2d 184, 189 (6th Cir. 1992). And other circuits follow this logic for both
§ 666(a)(1)(A) and (B).
United States v. Hines
, 541 F.3d 833, 837 (8th Cir. 2008) (permitting
aggregation to reach jurisdictional minimum);
United States v. Cruzado-Laureano
,
But we have not found (and the parties do not point us to) any case invoking a similar “aggregation” principle when it comes to corrupt counterparties. The closest discussion of the relationship between these theories comes from the First Circuit. Though that court has permitted the government to aggregate transactions to reach the $5,000 minimum, Cruzado- Laureano , 404 F.3d at 484, it has not extended that reasoning to duplicitousness under § 666(a)(1)(A) when individual transactions exceeded $5,000, Newell , 658 F.3d at 26. Reasoning that the principles motivating a rule for aggregation did not dictate the outcome on duplicitousness, it concluded that an indictment that charged “distinct violations of § 666(a)(1)(A)” within the same count was duplicitous. Newell , 658 F.3d at 28. Retrieving funds from two agencies created different transactions to be charged separately. See id. at 26, 28.
If it’s one bribery scheme between the same two people, the answer is straightforward. But what if, as here, multiple parties are involved? Sittenfeld’s corrupt agreement with Ndukwe can be understood as part of the same general scheme that led to Sittenfeld accepting a bribe from Rob. Rob framed his donation as something that Ndukwe wanted. The parties also probably expected Rob’s payments to satisfy Ndukwe’s October 30 promise to funnel donations to Sittenfeld. And both corrupt agreements had 435 Elm in view.
But in the end, it’s not clear that having two distinct corrupt counterparties gives rise to distinct crimes under our constructive-amendment caselaw, especially given our lack of relevant § 666 precedent. And we need not answer this difficult question directly because even if it were an error, it would not have been plain that the identity of the corrupt counterparty could constitute a conviction for a second, unindicted crime.
We come to the same conclusion on the Hobbs Act. [24] We again look to the First Circuit. That court has held that “the identity of the target is not an element of a robbery or conspiracy to commit robbery under the Hobbs Act.” United States v. Katana , 93 F.4th 521, 533 (1st Cir. 2024). That court also noted that the defendant failed to identify precedent “suggesting that robbery of an individual is a different offense than robbery of that individual’s home business.” at 535.
This case is similar. Sittenfeld does not point to precedent suggesting that extortion of a business owner (like Ndukwe) must be charged as a separate offense from the extortion of an investor in the same business (like Rob). Perhaps distinct instances of extortion should be charged separately, even if related. But our precedent does not require that, and the answer is unclear. So even if the identity of the target is an element of attempted Hobbs Act extortion, we see no plain error.
Thus it was not plain that the possibility of a conviction for the bribery agreement with Ndukwe constituted a separate offense (rather than a different means of committing the same crime) from the one he was indicted for. Because that distinction was not plain, we cannot find that a constructive amendment occurred based on the breadth in the jury instructions.
* * *
In the end, when we review the evidence, we can’t conclude that Sittenfeld has shown— under plain-error review—that there is a substantial likelihood he was convicted of an offense not charged in the indictment. The absence of varied evidence forecloses any relief for Sittenfeld on his constructive-amendment claim. The jury instructions, though impermissibly broad, did not plainly result in a conviction for a different crime not alleged in the indictment.
IV.
We AFFIRM Sittenfeld’s conviction.
__________________
CONCURRENCE
__________________ MURPHY, Circuit Judge, concurring. Suppose that a local official decides to run for the U.S. Senate on a platform of repealing a well-known law—say, the Affordable Care Act from 2010 or the Tax Cuts and Jobs Act from 2017. Suppose further that the candidate’s campaign literature solicits money from supporters by promoting the promise to repeal the law: “Donate to my campaign today because I will vote to repeal the Affordable Care Act if elected. Together we can overturn this law.” If a supporter chooses to donate based on the candidate’s pledge to take that official act, have the parties exchanged a bribe that violates the Hobbs Act (18 U.S.C. § 1951) and the federal bribery law governing state and local officials (18 U.S.C. § 666)? Treating that campaign donation as an illegal “quid pro quo” (the payment of money for the pledged repeal) would raise serious concerns under the First Amendment. In our republic, political candidates regularly make promises about what they will do if elected, and citizens who agree with those promises regularly support the candidates with their votes, their time, and their money. See McCutcheon v. FEC , 572 U.S. 185, 191–92 (2014) (plurality opinion). The Free Speech Clause exists to protect this political speech and association. See id. at 203; Buckley v. Valeo , 424 U.S. 1, 14–23 (1976) (per curiam); Robert H. Bork, Neutral Principles and Some First Amendment Problems , 47 Ind. L. J. 1, 29 (1971). Thankfully, then, the government disavowed any intent to prosecute generic campaign donations tied to campaign pledges. Oral Argument 22:19–23:10.
But the government did not do the best of jobs distinguishing that hypothetical prosecution from this real one. While serving as a member of Cincinnati’s city council, Alexander “P.G.” Sittenfeld says he never saw a development project he didn’t like. So when running for mayor, he used this pro-development platform to solicit campaign donations from developers, including those who (purportedly) sought to redevelop a specific property: 435 Elm Street. As he explained when asking for funds from this project’s proponents (who turned out to be undercover agents): “in seven years I have voted in favor of every single development deal that’s ever been put in front of me[.]” Tr., R.312, PageID 7557. Federal prosecutors nevertheless claimed that Sittenfeld’s actions crossed the line from campaign fundraising to bribery soliciting. They asserted that he entered an illegal quid pro quo by requesting donations with the promise to support the 435 Elm project. Yet why is Sittenfeld’s alleged pledge to vote on this project any different from the hypothetical pledge to repeal the Affordable Care Act? And why doesn’t Sittenfeld’s conduct implicate similar First Amendment concerns? I do not have good answers to these questions because the Supreme Court has adopted a “vague” “line” to separate protected political speech from illegal bribery. McCutcheon , 572 U.S. at 209 (plurality opinion).
As I shall explain, however, I am not sure that either law in this case—when properly interpreted—would require courts to get close to this constitutional line. I nevertheless concur in Judge Nalbandian’s excellent majority opinion because existing precedent seems to interpret these two statutes in a way that maximizes (rather than minimizes) the constitutional concerns.
I
A
Start with the Hobbs Act. This 1946 law makes it illegal for a person to “affect[]
commerce” by “extortion” or attempted extortion. 18 U.S.C. § 1951(a). It defines “extortion” as
“the obtaining of property from another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right.” § 1951(b)(2). A
perceptive reader (and even a not-so-perceptive one) should notice that this text lacks “even a
colorable allusion to campaign contributions or
quid pro quos
.”
McCormick v. United States
,
In contrast, I tend to agree with those who have read the Hobbs Act to exclude garden-
variety bribery (paying money to influence an official act).
See id.
at 279–84 (Thomas, J.,
dissenting);
United States v. Cerilli
, 603 F.2d 415, 434–35 (3d Cir. 1979) (Aldisert, J.,
dissenting);
see also Ocasio v. United States
,
Then how did an extortion law transmogrify into a bribery law? Like other dubious
doctrines, this result arose “seemingly by accident.”
FDA v. All. for Hippocratic Med.
, 602 U.S.
367, 403 (2024) (Thomas, J., concurring). For decades, courts refused to extend the Hobbs Act
to cover voluntary (if illegal) agreements to exchange a payment for an official act.
See
McCormick
,
To make matters worse, when the Supreme Court got involved in
McCormick
, it granted
certiorari on a
subsidiary
question that required it to assume that the Hobbs Act covered bribery
(the “logically antecedent” issue).
Warner Chappell Music, Inc. v. Nealy
, 601 U.S. 366, 374
(2024) (Gorsuch, J., dissenting);
see McCormick
,
It was not until
Evans
that the Court held (rather than assumed) that the Hobbs Act
covered bribery. Yet the parties there did not even brief the issue.
See Ocasio
,
B
Sittenfeld accepts that the Hobbs Act covers bribery—as he must, given
Evans
. But he
asks us to clarify what
McCormick
meant when it used the adjective “explicit” to describe the
campaign donations that might violate the Act.
See id.
at 271, 273 (majority opinion). Sittenfeld
believes that
McCormick
sought to give breathing space to political speech when prosecutors
argue that the “the purported
quid
” in a quid pro quo “is a campaign donation” (rather than a
“stack of cash,” a “Rolex,” or another item for personal use). Appellant’s Br. 21. He interprets
the word “explicit” to require “objective evidence” that a public official agreed to exchange an
official act for a campaign donation.
Id.
at 23. When ambiguous evidence would allow a jury to
find either a legal donation or an illegal bribe, this argument goes, the “benefit of any doubt”
should protect the First Amendment activity at the heart of most donations.
FEC v. Wis. Right to
Life, Inc.
,
But I see room for debate over the proper test. To start, McCormick is an opaque opinion that articulated the governing standard in different ways. The Court first used the phrase “explicit quid pro quo ” to describe the test that the Fourth Circuit had rejected. McCormick , 500 U.S. at 271. Because the Court disagreed with the Fourth Circuit’s view, perhaps its opinion could be read to adopt a requirement that the quid pro quo (that is, the agreement ) be “explicit.” Later, though, the Court suggested that the Hobbs Act might cover a campaign donation when made for a public actor’s “explicit promise ” to take an official act. Id. at 273 (emphasis added). This second formulation might suggest that only part of the agreement (the “quo”) must be “explicit.” Still later, the Court did not use the word “explicit” at all and simply said that the lower court had erred by not requiring a “ quid pro quo ” for campaign contributions. at 274. This third formulation might suggest that the statute lacks an “explicitness” element. In short, McCormick leaves unclear what (if anything) must be “explicit” for campaign contributions to violate the Hobbs Act.
And what did McCormick mean by the word “explicit” anyway? One might have read that adjective to mean that the alleged quid pro quo (or the alleged promise) could not be “implied” and instead had to be “plain in language,” “clear,” or “express.” Webster’s New International Dictionary of the English Language 897 (2d ed. 1934). Our caselaw, though, has not read the term that way. We have reasoned that, while an agreement must be “explicit,” it need not be “express.” See Blandford , 33 F.3d at 696. Given this law, the district court in Sittenfeld’s case correctly instructed the jury that “while the government need not prove that the quid pro quo was express , the government must prove that the quid pro quo was explicit .” Instr., R.202, PageID 3214, 3231. Yet these two words are synonyms. See Webster’s , supra , at 897. So what divides an explicit agreement from an express one? I doubt many jurors would understand this subtle distinction. And I doubt even more that courts should be sending people to prison based on it.
Nor can we fall back on the text of the Hobbs Act to clarify
McCormick
’s ambiguities.
McCormick
did not even try to mesh its requirement of an (explicit?) quid pro quo with the text:
“the obtaining of property from another . . . under color of official right.” 18 U.S.C.
§ 1951(b)(2). Rather, the Court “simply made up” the quid-pro-quo element to ensure that the
Act did not have “substantial overbreadth.”
Evans
,
To be sure, the Court in
Evans
later tried to ground
McCormick
’s quid-pro-quo element
in the common-law definition of extortion.
All this said, I doubt that the Hobbs Act permits Sittenfeld’s proposal to require explicit
evidence of a quid pro quo. He would reserve this test for claims that public officials wrongly
received campaign contributions (not personal gifts). Appellant’s Br. 21–23. Like
McCormick
,
however, this distinction between campaign donations and other “quids” rests on pure policy.
Perhaps Sittenfeld means to invoke the canon of constitutional avoidance, given the First
Amendment concerns with chilling ordinary campaign donations and speech requesting them.
But that canon acts as a tiebreaker between two “
plausible
interpretations of a statutory text[.]”
Clark v. Martinez
,
Regardless, Sittenfeld’s proposed test may well not fix the First Amendment problems he identifies. Consider my hypothetical again. If a candidate pledges to repeal the Affordable Care Act in campaign literature requesting campaign contributions, and if contributors disclose that they have supported the candidate because of this promise, why wouldn’t there be an explicit quid pro quo? Indeed, the district court’s definition of “quid pro quo” here would seem to render that hypothetical campaign contribution illegal. The court defined that phrase to cover either “a public official’s solicitations of things of value in exchange for performing or agreeing to perform specific official action,” or “a public official’s receipt of things of value when the public official knows that the person who gave the thing of value was doing so in return for the public official performing or agreeing to perform a specific official action.” Instr., R.202, PageID 3213. Why hasn’t the hypothetical candidate asked for funds “in exchange for performing” an official duty? Id.
Yet I have a hard time seeing how the First Amendment would allow the government to
prosecute the political speech and association of the candidate.
See McCutcheon
, 572 U.S. at
203–04 (plurality opinion). To be sure, the Court has long recognized that the First Amendment
allows the government to prohibit “the financial
quid pro quo
: dollars for political favors.”
McCutcheon
, 572 U.S. at 192 (plurality opinion) (quoting
FEC v. Nat’l Conservative Political
Action Comm.
, 470 U.S. 480, 497 (1985)). But dating back to
Buckley
, the Court has never
defined what that Latin phrase requires with any precision.
See id.
at 192, 207–09;
Citizens
United v. FEC
,
So where does this leave us? I agree with Sittenfeld that the current reading of the Hobbs
Act raises First Amendment concerns. I disagree, though, that we are the right court to address
the concerns. For one thing, the Supreme Court created this dilemma by adopting an ambiguous
test seemingly tied to policy rather than text. Only that Court can resolve what it meant by its
“
quid pro quo
” element, what it meant by “explicit,” and how these elements comport with the
Hobbs Act’s text.
McCormick
,
For another thing, I see only one reading that can eliminate the First Amendment concerns while adhering to a “plausible” view of the Hobbs Act’s text: the view that the Act does not reach garden-variety bribery. Clark , 543 U.S. at 381; see Evans , 504 U.S. at 279–84 (Thomas, J., dissenting). Here again, however, only the Supreme Court can take that course. Nine years ago, Justice Breyer identified other “problems” that Evans created by conflating extortion and bribery. Ocasio , 578 U.S. at 300 (Breyer, J., concurring). Yet he could not address the problems because the parties accepted Evans as valid. See id. at 300–01. Sittenfeld likewise accepted Evans as valid in our court because “vertical stare decisis ” represents an “absolute” mandate. Ramos v. Louisiana , 590 U.S. 83, 124 n.5 (2020) (Kavanaugh, J., concurring in part). But nothing prohibits him from asking the Supreme Court to reassess the Act’s scope in light of three decades’ worth of precedent finding campaign donations entitled to strong First Amendment protection.
II
Turn to the other federal law at issue in this appeal: 18 U.S.C. § 666. This law separately punishes a state or local official who “corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions” of the state or local government that has a value of at least $5,000. 18 U.S.C. § 666(a)(1)(B). Both parties have assumed on appeal that McCormick ’s quid-pro-quo test for the Hobbs Act (including whatever explicitness element it contains) applies in an identical way to § 666. Indeed, their briefs do not distinguish between these two laws at all. This assumption makes little sense to me. The two laws contain different language, and courts must respect their textual differences under ordinary interpretative rules. See, e.g. , Loughrin v. United States , 573 U.S. 351, 358 (2014).
We thus must ask again whether § 666’s language supports Sittenfeld’s
McCormick
-
based claim that the law applies to campaign contributions only if explicit evidence shows that
an official entered a quid-pro-quo agreement for the contributions. Here too, I agree with the
majority opinion that our caselaw has already rejected this test for § 666.
See United States v.
Porter
,
That said, I agree with Sittenfeld that § 666 may well raise First Amendment concerns
like those raised by the Hobbs Act when prosecutors bring charges against state or local officials
over campaign donations. Modifying my hypothetical slightly, I would find this law problematic
if it prohibited a city councilmember’s campaign literature from “solicit[ing]” campaign
contributions (something “of value”) with the pledge that the candidate plans to repeal an
unpopular local ordinance if reelected (“business” of the local “government”). 18 U.S.C.
§ 666(a)(1)(B). Indeed, most political candidates likely find each citizen’s vote “valuable”
because candidates need those votes more than campaign cash to win the election. So one could
read § 666 to bar candidates from soliciting citizens to give them their vote (“anything of value”)
with promises of official acts. Yet the First Amendment allows political candidates to
discuss the actions they will take if elected and to associate with others who share their goals.
See Citizens United
,
Aside from Sittenfeld’s proposed test, though, courts could avoid such problematic readings of § 666 in textually “plausible” ways. Clark , 543 U.S. at 381. Of most note, the Supreme Court recently clarified that the law reaches only bribes (“payments made or agreed to before an official act in order to influence the official with respect to that future official act”)— not gratuities (“payments made to an official after an official act as a token of appreciation”). Snyder , 603 U.S. at 5, 19–20. And the hypothetical city councilmember’s campaign literature would not have been soliciting a bribe because the councilmember would have lacked the “corrupt state of mind” of “intending to be influenced ” by the donation to repeal the ordinance. Id. at 11 (emphasis added).
To be sure,
Snyder
may not eliminate all First Amendment concerns. Later in the
opinion, the Court read the word “rewarded” in § 666 to eliminate the “defense that [an] official
would have taken the same act anyway and therefore was not ‘influenced’ by the payment.” 603
U.S. at 19. Might this reading eliminate the city councilmember’s defense that he committed to
repeal the ordinance with or without the donations? I am not sure. But § 666 can be read to
contain other safeguards. For example, the law includes the following safe harbor: “This section
does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or
reimbursed, in the usual course of business.” 18 U.S.C. § 666(c). A properly documented
campaign contribution permitted under state law might qualify as “bona fide . . . compensation
paid . . . in the usual course of business.”
Id.
That reading would take lawful campaign
donations off the table for § 666 prosecutions and offer a “plausible” path to distinguish those
contributions from, say, under-the-table cash payments or other gifts for an official’s personal
benefit.
Clark
,
And even if one disagrees with this view, officials still violate § 666 only if they
“corruptly” solicit or accept campaign contributions. 18 U.S.C. § 666(a)(1)(B). What does this
adverb mean? Relying on
Arthur Andersen LLP v. United States
, 544 U.S. 696 (2005), the
government in
Snyder
read it to be “‘associated with wrongful, immoral, depraved, or evil’
conduct.” Brief for the United States at 38–39,
Snyder
,
To sum up, Sittenfeld rightly recognizes that § 666 can raise constitutional concerns as applied to campaign donations. But he wrongly relies on an atextual gloss to reduce the concerns.
That said, I disagree with the government that “[t]he jury instructions” for the § 666
charges in this case “required the government to meet
McCormick
’s” test. Appellee’s Br. 35.
Although the instructions comported with our existing caselaw, I doubt that caselaw adequately
protected the First Amendment interests at stake. At the time of Sittenfeld’s trial, we did not
even read § 666 to require a quid pro quo.
See Abbey
,
Yet I find our caselaw (and the jury instructions) problematic in other ways. We have not
read § 666’s text to require proof that a contributor gave money for
a specific act
.
See Abbey
,
Next, we have given the adverb “corruptly” an unclear definition. We have said that this
adverb covers any “act done with an intent to give some advantage inconsistent with official duty
and the rights of others.”
Abbey
,
For what it is worth, these instructions appear out of step with the government’s current
view of § 666. In
Snyder
, it told the Court that § 666’s language contains a “parallel
requirement” to the federal bribery statute’s “official act” language. 18 U.S.C. § 201(b)(2)(A),
(c)(1)(B); Brief for the United States,
supra
, at 37. The bribery statute requires prosecutors to
connect a contributor’s payment to a “specific ‘official act’” of the official.
United States v. Sun-
Diamond Growers of Cal.
,
As noted, moreover, the government in
Snyder
read the adverb “corruptly” to require
“‘wrongful, immoral, depraved, or evil’ conduct.” Brief for the United States,
supra
, at 38–39
(quoting
Arthur Andersen
,
Sittenfeld did not raise these instructional issues in our court, so they give us no basis to reverse his single § 666 conviction. He instead rested his appeal of both counts on his explicit- evidence theory. That all-or-nothing strategy may have made sense because these § 666-specific issues would not have affected his separate Hobbs Act conviction. But the Supreme Court’s evaluation of this theory’s validity must begin with a proper reading of the statute at issue. The government in Snyder suggested that “if an appropriate case arose, the Court could make clear the boundaries of prosecutions for gratuities disguised as campaign contributions.” Brief for the United States, supra , at 34. Although the Court rejected the government’s view that the statute covered gratuities, this case shows that the need for these clear boundaries continues to exist.
* * *
All told, I share Judge Bush’s concerns with Sittenfeld’s prosecution in this case. Yet I part ways with the dissent’s conclusion that courts should depart from their usually deferential sufficiency-of-the-evidence test to police the boundary between a protected campaign donation and an illegal bribe. I see no need to rely on “pragmatism” over “principle” because a principled reading of the laws could eliminate any First Amendment concerns. But only the Supreme Court can provide that reading. Under the law as it exists now, I concur in the majority opinion.
_________________
DISSENT
_________________
JOHN K. BUSH, Circuit Judge, dissenting. Alexander Sittenfeld’s aggressive campaign
fundraising caught the attention of the FBI. Over the course of more than year, a sting operation
tried to catch him saying or doing something that might serve as evidence of a bribe or extortion
masked as a campaign contribution. Only a few words—the “love you but can’t” remark—in his
early conversation with an undercover informant created ambiguity as to his intent. But
Sittenfeld’s subsequent statements and dealings with both the informant and undercover FBI
agents clarified that his aim was to obtain a legitimate contribution, not an improper payment.
Viewed in its totality, the proof at trial was insufficient to sustain Sittenfeld’s guilty verdict
under
McCormick v. United States
,
The majority concludes otherwise. It finds that this single, ambiguous line—by a politician who refused contributions that did not comply with the law, resisted frequent attempts by the FBI’s pretend donors to cajole him with personal gifts, and repeatedly reminded these donors of how to contribute to his campaign legally—was sufficient to criminalize an otherwise lawful and constitutionally protected campaign contribution. Granted, the FBI agents and their informant, Chinedum Ndukwe, testified to their belief that there was a corrupt bargain. But all of the secret audio and video recordings of Sittenfeld after the “love you but can’t” remark captured normal political activity. They reveal that Sittenfeld himself viewed the transaction as lawful and that he did what one would expect for a legal contribution.
The evidence, viewed in whole, fell short of the minimum required for a rational juror to find beyond a reasonable doubt that Sittenfeld had the corrupt intent for bribery or extortion. The proof cannot sustain the explicit quid pro quo that McCormick requires to convict. Indeed, one can only reasonably infer Sittenfeld viewed the payment as a campaign contribution and nothing else. I therefore respectfully dissent. [1]
I. The Court’s Responsibility to Police the Line of Sufficiency
The government is correct that Sittenfeld “bears a very heavy burden” to show insufficiency of the evidence. United States v. Emmons , 8 F.4th 454, 478 (6th Cir. 2021) (citation omitted). But at least three aspects of this case distinguish it from the vast majority of sufficiency challenges to bribery or extortion convictions. First, Sittenfeld’s conviction involves only a campaign contribution and nothing that would directly benefit him financially or otherwise unambiguously show criminal intent. Second, Sittenfeld’s conduct that the government calls proof of an illegal quid pro quo is equally consistent with lawful activity that one would expect for a legitimate campaign contribution. Third, most of the government’s proof comes from audio and video recordings instead of testimony.
A. Unusualness of this Case
First, consider how unusual this case is among bribery or extortion cases that involve campaign contributions. Perhaps every such case at the federal appellate level that sustained a guilty verdict since McCormick has had at least one of the following characteristics: (1) the defendant received personal gifts (cash, vacations, dinners, etc.) in addition to campaign contributions, (2) the government proved that the campaign contributions were part of an independently criminal scheme, or (3) there was direct, unambiguous evidence of a quid pro quo. Sittenfeld’s case has none of them.
In each of these circumstances, a sufficiency challenge faces an uphill battle because
there is little risk of the jury mistakenly finding that the defendant had corrupt intent. For
example, in the first scenario, money going directly into a politician’s pocket does not parallel a
legitimate campaign contribution, to say the least.
See, e.g., United States v. Ring
,
Consequently,
Evans v. United States
, 504 U.S. 255 (1992) and
United States v.
Blandford
,
By contrast, consider the “thin legal ice” of a prosecution based on a campaign
contribution alone, such as the one here.
Empress Casino Joliet Corp. v. Balmoral Racing Club,
Inc.
, 831 F.3d 815, 825 (7th Cir. 2016). Citizens make campaign contributions to influence
policymaking, and these contributions constitute political speech under the First Amendment.
See Citizens United v. FEC
,
A politician may take a legislative position, fundraise off it, and then fundraise more after
successfully passing laws that advance it. An official does not break the law when he adopts a
position that aligns with a donor’s interest.
See Brown v. Hartlage
,
We therefore need to consider Sittenfeld’s prosecution in light of its unusual facts—a conviction based on an allegedly corrupt campaign contribution and not anything else. This case presents the most troubling context for application of the bribery and extortion laws: when conduct arguably protected by the Constitution is at issue. In these circumstances, a case will likely come close to the line of sufficiency, so we must police that line vigorously.
B. Evidence of Sittenfeld’s Alleged Corrupt Intent Is Consistent with Lawful Motive
The second reason to zealously guard the line of sufficiency here is that the government’s proof of Sittenfeld’s alleged corrupt intent is entirely consistent with his having a lawful motive.
As the majority correctly says, “state of mind is at the heart of the inquiry.” Majority Op.
at 15. For bribery, the government must prove that Sittenfeld had a “corrupt state of mind and
the intent to be influenced in [an] official act.”
Snyder v. United States
,
A helpful way to analyze a quid pro quo is through the lens of contract formation. After all, a quid pro quo is a contract: as the majority correctly notes, there must be “a meeting of the minds,” Majority Op. at 15, and the official “must receive some consideration for his promise,” id. An agreement becomes illegal only if there is mutual consent for a specific contribution to “control[]” the politician’s vote or other official act. McCormick , 500 U.S. at 273. But to anyone other than the politician, it can be extremely difficult to answer when such mutuality exists, particularly when, as here and in Evans , the government has only circumstantial evidence to prove its case.
Not only is it difficult to discern whether there is an illegal bargain in a case like
Sittenfeld’s, but there is also a high cost to getting it wrong. “The right to participate in
democracy through political contributions is protected by the First Amendment[.]”
McCutcheon
,
Consequently, we need to meaningfully enforce the line of sufficiency in cases such as
this one, where a jury could mistake lawful—indeed, constitutionally protected—conduct for
evidence of a crime.
See Counterman v. Colorado
,
In restraint-of-trade cases, the former circumstance is known as conscious parallelism, a lawful “common reaction of firms in a concentrated market that recognize their shared economic interests and their interdependence.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 553 (2007) (cleaned up). Parallel behavior can be evidence of an illegal bargain, but it may also simply reflect lawful, rational decisionmaking by the parties involved. This presents a deep problem in the field of antitrust:
[J]udged from a distance, the conduct of the parties in the various situations can be indistinguishable. For example, the fact that a manufacturer and its distributors are in constant communication about prices and marketing strategy does not alone show that the distributors are not making independent pricing decisions. A manufacturer and its distributors have legitimate reasons to exchange information about the prices and the reception of their products in the market.
Monsanto
, 465 U.S. at 762. Put succinctly, the problem is that actions suggesting illegal
collusion are often “consistent with conspiracy, but just as much in line with a wide swath of
rational and competitive business strategy.”
Twombly
,
Switch “political strategy” for “business strategy” and one can see our problem: it is perfectly normal—and legal—for politicians and their donors to have shared interests and act on them in parallel, yet it is illegal to make an unambiguous agreement exchanging official acts for campaign contributions. And just as “mistaken inferences in [restraint-of-trade] cases . . . are especially costly, because they chill the very conduct the antitrust laws are designed to protect,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 594 (1986), so too are mistaken inferences in prosecutions of campaign contributions because they chill conduct the First Amendment protects.
In the face of such precarious challenges, the Supreme Court does not permit judges in
restraint-of-trade cases to sit back and let juries decide right from wrong when there is a mere
possibility of inferring illegality from circumstantial evidence.
Cf. Twombly
, 550 U.S. at 573
(Stevens, J., dissenting) (“[T]here is a risk that jurors may mistakenly conclude that evidence of
parallel conduct has proved that the parties acted pursuant to an agreement when they in fact
merely made similar independent decisions.”). Instead, “antitrust law limits the range of
permissible inferences from ambiguous evidence.”
Matsushita
,
Consider
In re Text Messaging Antitrust Litigation
,
The Seventh Circuit refused to let that case reach a jury. Using other evidence in the record to contextualize the emails, the court found that they “need not imply express collusion.” As for the alleged coverup, the court found no reason to characterize it as such because “there is . . . an equally plausible reason for the deletion of the emails in question,” namely that the employee was afraid of “abusing one’s corporate superiors.” Id.
In re Text Messaging
is one of many cases in which courts of appeals have held that
evidence of an isolated, ambiguous “smoking gun” communication is not enough to create a
triable issue of collusion when the totality of proof shows only conscious parallelism.
See also Anderson News, LLC v. Am. Media, Inc.
,
It is not far-fetched to import principles from antitrust law to other legal contexts such as the one here. Indeed, civil procedure syllabi routinely include Twombly , Matsushita , and Monsanto because they set standards for sufficiency to reach discovery ( Twombly ), trial ( Matsushita ), and verdict ( Monsanto )—they are not outliers specific to antitrust. Their lesson in how to police the line of sufficiency is widely applicable. It is all the more urgent that our court in particular heed this lesson given the similarity of our case to those seminal civil cases and the greater consequences at stake in a criminal prosecution. Indeed, it would be strange to allow the government to imprison Sittenfeld on evidence that would not reach the jury in a civil lawsuit. And it would be stranger still to treat core political speech less carefully than common corporate activity.
In analogizing to antitrust, I do not seek to impose a foreign standard of review in this
case. Instead, restraint-of-trade cases can prove useful in policing the sufficiency line because
that field of law has more frequently faced Sittenfeld-like circumstances than the
bribery/extortion field has. Under the standard of proof applicable here (beyond a reasonable
doubt for any rational trier of fact), the government’s case surely fails if it only produces
evidence “consistent with permissible [political activity] as with illegal conspiracy,”
Matsushita
,
475 U.S. at 588, or does not “exclude the possibility that the” alleged conspirators “act[ed]
independently,”
Monsanto
,
As the Supreme Court observed less than three years ago, “[t]o be sure, the line between quid pro quo corruption and general influence may seem vague at times, but the distinction must be respected to safeguard basic First Amendment rights. And in drawing that line, the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” Cruz , 596 U.S. at 308 (citations omitted). Respectfully, while the majority hesitates to police that line, I believe that is precisely what the Constitution requires us to do.
C. Audio and Video Recordings Capture Sittenfeld’s Communications Finally, there is a third reason here to guard the sufficiency line that is not present in all appeals of a bribery or extortion conviction: namely, the FBI introduced evidence of its interactions with Sittenfeld through audio or video recordings rather than testimony alone. When witnesses testify about events that are not recorded, a jury can entirely credit or ignore the testimony. In that situation we, as the appellate court, must defer to the jury: we review a verdict by crediting testimony that incriminates and ignoring what exculpates. See United States v. Osborne , 886 F.3d 604, 608 (6th Cir. 2018) (“All reasonable inferences and resolutions of credibility are made in the jury’s favor.” (citation omitted)).
But when the evidence is recorded, the calculus changes. Like with the email smoking guns of In re Text Messaging and the other cases noted above, the court does not need a witness to know what was said. There is nobody’s credibility to evaluate. The Supreme Court also made this point in Scott v. Harris , 550 U.S. 372 (2007). The question was whether a police officer used excessive force in a car chase when he forced the plaintiff’s car to crash. On a summary judgment appeal for denial of qualified immunity, Justice Scalia, writing for eight justices, admonished the appeals court for uncritically accepting the plaintiff’s interpretation of events (that he was driving responsibly and did not pose a threat to the public) when the video evidence blatantly contradicted it. at 378–80.
In this case, therefore, when we construe evidence in a light most favorable to the verdict, we should “view[] the facts in the light depicted by the videotape,” id. at 381, instead of through the subjective interpretation of the FBI-agents and their informant. And we should derive only “ reasonable inferences” from the recordings in the verdict’s favor, Osborne , 886 F.3d at 608 (emphasis added) (citation omitted).
II. The Government’s Insufficient Evidence of an Explicit Quid Pro Quo
With these distinguishing aspects of the case in mind, consider the relevant facts. For the immense effort the FBI put into this sting, it found scant proof to support its case that Sittenfeld agreed to a corrupt bargain. The sting lasted over a year and involved two undercover FBI agents and one of Sittenfeld’s friends, Chinedum Ndukwe, a former football player for the Cincinnati Bengals who had long contributed to Sittenfeld’s political campaigns. The FBI recorded every discussion during the sting.
Prosecutors could only point to a single ambiguous remark in a single early phone call as standalone evidence that Sittenfeld was doing anything out of the ordinary. This, as noted, was the “love you but can’t” phrase prominently discussed in the parties’ briefs and the majority opinion. According to the prosecution’s interpretation, Sittenfeld used the October 30th call to threaten Ndukwe and, by proxy, Ndukwe’s purported business partner, the undercover FBI agent named Rob: if Rob or his associates failed to contribute to the campaign, then Sittenfeld would refuse to help them as mayor. Appellee’s Br. at 38–39. Remember, the government indicted Sittenfeld for extorting and receiving a bribe from Rob, not Ndukwe. So to be certain it did not constructively amend the indictment, the government must argue that any threat to Ndukwe was actually a threat to Rob. See Majority Op. at 36–37.
The majority believes the “love you but can’t” line is sufficient to convict for bribery. It also believes Ndukwe approached Sittenfeld with a quid pro quo offer from Rob on a November 2nd phone call and that Sittenfeld agreed to it when he met Rob on November 7th at Nada restaurant. I disagree with both points.
Beginning with the supposed coercion of Ndukwe on the October 30th call, it is important to note how little we can glean from the cryptic words “love you but can’t” themselves. Sure, Ndukwe testified that he took the line as a threat. Crediting that testimony only proves Ndukwe interpreted the remark that way. Even if one could ignore Ndukwe’s natural bias as a government informant to interpret Sittenfeld’s statement in the worst possible way, the recordings contradict his account. The other evidence at trial goes against Ndukwe’s interpretation, so much so that to adopt his interpretation would be to make an unreasonable inference. And a review for sufficiency of the evidence requires us to review the entire trial record, not just this single statement in isolation. See United States v. Vichitvongsa , 819 F.3d 260, 270 (6th Cir. 2016). That comprehensive review, I respectfully submit, the majority opinion fails adequately to do.
The complete context includes the recorded November 7th meeting with Rob at the aptly named restaurant, Nada. That conversation negates whatever value the government claims “love you but can’t” says about Sittenfeld’s intent. The recording demonstrates that Sittenfeld clearly did not think he had coerced Ndukwe (and Rob, by proxy) into a corrupt bargain by saying “love you but can’t.” Instead, he practically begged Rob for a campaign donation. Sittenfeld marshalled evidence that he was an influential legislator to convince Rob that he could get his 435 Elm plan enacted. He even brought a slideshow to make the point. Why would Sittenfeld make such effort to convince Rob to donate if had he bullied Ndukwe into promising a donation from Rob a week earlier?
Next consider the theory that, outside the context of “love you but can’t,” Sittenfeld agreed to a quid pro quo at Nada. The recording suggests nothing in the way of corrupt intent on Sittenfeld’s part. He only tried to convince Rob to donate to him because he was an influential, pro-business politician—it is far from illegal for Sittenfeld to suggest his influence and positions could benefit Rob’s interests. See Citizens United , 558 U.S. at 359; Cruz , 596 U.S. at 308 (“influence and access embody a central feature of democracy” (citation omitted)). When Rob tried to frame his potential contribution as an explicit bribe, he flubbed. Even he admitted that Sittenfeld took his invocation of a “deal” to refer to the 435 Elm development deal he wanted with the city as opposed to a deal for a bribe. No rational juror could find that Sittenfeld evinced corrupt intent there when even Rob believed Sittenfeld did not take the conversation to be about bribery.
In fact, everything Sittenfeld said at the November 7th Nada meeting aligned with the terms of the legitimate campaign contribution that he had described to Ndukwe on the November 2nd phone call, captured by the FBI on audiotape. On that call, Ndukwe made the first and only clear request for a bribe, but Sittenfeld rebuffed him. Rather than accept the bribe, Sittenfeld avowed his pro-business bona fides like he later did with Rob. There is nothing illegal about that. Sittenfeld suggested that though a contribution could not control his action, his preconceived policy positions made him, to quote something he later told Rob, a “good bet[] and good investment[].” The benefit to Ndukwe and company would not be control over Sittenfeld’s action or a guarantee per se, but instead having a reliably pro-business mayor in office who was not predisposed against them like Mayor Cranley supposedly was. In the context of the whole record then, neither the isolated and ambiguous “love you but can’t” statement nor any subsequent conversation can prove extortion or bribery beyond a reasonable doubt, even under Evans ’s permissive circumstantial evidence rule.
The majority cites other actions and words of Sittenfeld to suggest the existence of a quid
pro quo, but they all suffer from the same flaw: each is “consistent with” what we would expect
a law-abiding, pro-business politician to do.
Twombly
,
First, the majority suggests Sittenfeld came to the Nada meeting ready to support 435 Elm because he knew from the November 2nd call that Rob was amenable to a bribe. See Majority Op. at 19–20. But any politician who plans a dinner with a potential donor will highlight the politician’s support for the interests that drive the donor. And the clarity with which Sittenfeld laid out what a contribution would and would not accomplish diminishes the relevance of this argument to a point that it is an unreasonable inference. Next the majority finds it incriminating that Sittenfeld can be seen nodding along to Rob’s points. But common experience teaches that one nods in a conversation to indicate one’s attention and understanding to what is said, not necessarily agreement with it.
Sittenfeld also, according to the majority, “showed apparent disregard for the true source of the donations” while caring meticulously about the donation procedure at the Nada meeting. Majority Op. at 20. By this the majority implies that the potential for Rob to use straw donors did not bother Sittenfeld. The recording shows otherwise. Until the Nada meeting, Sittenfeld and Ndukwe only discussed donating through LLCs, which was unquestionably legal. Sittenfeld heard at Nada for the first time that Rob wanted to donate through perhaps eighteen personal checks or money orders because he was afraid LLC donations could be traced to him. As the majority says, Sittenfeld responded by reminding Rob of the rules for attributing personal donations to donors. But because Rob told Sittenfeld earlier in the conversation that his investment group had more than twenty investors, it was obvious that Rob could round up eighteen checks without resorting to straw donors. A later piece of the conversation confirms Sittenfeld did not understand Rob to have proposed straw donors. When Rob mentioned giving Sittenfeld “money orders from you know John Doe,” Sittenfeld stopped him to make sure he meant “a real real person . . . whose [ sic ] part of your guys’ network.” Appellate R. 23, p. 84. Rob affirmed that he did. Viewed in whole then, the conversation does not support a reasonable inference that Sittenfeld was fine with straw donors.
The majority also leaves out that earlier in the conversation Sittenfeld tried to convince Rob to stick with the original plan of LLC donations, but directed toward Sittenfeld’s PAC instead of his campaign. That, according to Sittenfeld, would achieve Rob’s goal of staying anonymous. And in the end, Rob did contribute legally to Sittenfeld’s PAC via LLCs.
The majority sees the potential to fault Sittenfeld there, too. It finds “at least some probative value” in Sittenfeld’s eagerness to help Rob and company stay anonymous. Majority Op. at 20. But that cannot possibly incriminate Sittenfeld. The right to donate anonymously to political organizations (like a political action committee, as here) is one of the strongest protections of the First Amendment’s right to freely associate. That freedom applies whether the beneficiaries are black activists in 1950s Alabama, conservative activists in 2010s California, or make-believe real estate developers in present-day Cincinnati. See NAACP v. Alabama , 357 U.S. 449 (1958); Americans for Prosperity Found. 594 U.S. at 595. It cannot possibly be that politicians must or even should ask their followers why they want to keep their contributions as hidden as the law allows.
And that is the full extent of what Sittenfeld offered to do for his donors. Each time Sittenfeld saw potential impropriety in how Rob wanted to contribute, he reminded Rob how to do so legally and refused a donation when it did not comply with the law.
To prove a quid pro quo, there must be evidence of an explicit agreement on both sides of the transaction, not just from the side conducting the sting operation. See Blandford , 33 F.3d at 696. Viewed in the light most favorable to the government, the evidence shows only a single ambiguous statement made by Sittenfeld to Ndukwe that could be read to suggest improper intent. But the totality of the evidence vitiates that statement’s probative value. To be sure, Ndukwe and the FBI agents testified to their belief that there was a corrupt bargain. But there is no proof that Sittenfeld himself viewed the campaign contribution that way. In fact, the video and audio recordings show just the opposite—that at every turn he did what one would expect to ensure its legality.
Even though the government tried to get Sittenfeld to take the bribery bait, he never bit. No illegal agreement ever materialized. Sittenfeld accepted the campaign contribution for what he thought it was—a campaign contribution—and not the product of any explicit quid pro quo for official acts.
III. Reconsidering McCormick
Because the prosecuted conduct here is solely a purported campaign contribution, this case falls in the danger zone that surrounds the sufficiency line of bribery and extortion cases. Given that concern, and given post- McCormick caselaw that more strongly protects campaign contributions under the First Amendment, it would be helpful for the Supreme Court to provide guidance here. The lower courts need to know the extent of McCormick ’s protections in cases where the only allegation of illegality relates to corrupt, but otherwise lawful, campaign contributions.
To understand the danger here, consider the majority’s assertion that McCormick would condemn a politician who says, “because of this gift I will now be sure to keep my campaign- trail promise.” [2] Majority Op. at 15. If a court can reach this conclusion based on the logic of McCormick , then perhaps the Supreme Court should clarify the reasoning of that decision.
This example is much like common political horse-trading. Legislators routinely promise to vote for a colleague’s bill in consideration of a colleague’s vote on their bill. Interest groups routinely promise the votes of their members if a politician pledges to take a certain policy position. And candidates for executive office routinely endorse their opponents, give flattering speeches at campaign events, and wind up with a cabinet post. Surely these are things of value. Under the majority’s reading of McCormick , each of these examples contravenes the plain meaning of the bribery and extortion statutes. Further, campaign contributions are similar to each of these because “[they] are valuable only as a means to get votes . . . . A legislator who receives a contribution has increased her expected number of votes by a certain amount . . . . The legislator does not get anything more out of the contribution than that.” David A. Strauss, Corruption, Equality, and Campaign Finance Reform , 94 Colum. L. Rev. 1369, 1373 (1994). Indeed, Judge Murphy notes that Evans ’s interpretation of the Hobbs Act appears to go at least this far. Concurring Op. at 44–45.
So what separates campaign contributions from the other items in the list? McCormick ’s
pragmatic explanation is that “a proposal to trade one public act for another, a form of
logrolling,”
United States v. Blagojevich
,
So, a reasonable inference from
McCormick
is that pragmatism rules this area of law
much more so than principle.
Cf. Sun-Diamond Growers
,
Judge Murphy believes the better move is to refrain from employing pragmatism when a principled approach would prove superior. Concurring Op. at 52. I agree that we should prefer a textualist interpretation to the policy-centric reasoning of McCormick . I also agree with Judge Murphy that, in lieu of such a change, further Supreme Court guidance would help lower courts, particularly for cases like this one where there is no unambiguous evidence of a quid pro quo and no independent indicia of corrupt intent, like personal gifts or a connection to an independently criminal scheme.
However, I respectfully disagree with Judge Murphy on one point. He recognizes as I do that the Court’s vague doctrine in this field leaves the exercise of some First Amendment rights in a precarious position. Concurring Op. at 46–47. But I do not believe we must do nothing until the Court does something. To the contrary, courts routinely apply precedents that do not cleanly address the situation at hand. If we can choose to apply controlling precedent in one way that protects First Amendment rights or in another that imperils them, I believe our duty, both to the Constitution and the Court’s precedent, compels us to choose the former.
We need not contradict
McCormick
or
Evans
to do so here.
McCormick
did not mark
itself as the fullest extent of protection for campaign contributions against Hobbs Act
prosecutions. In fact, it is more precise than many acknowledge.
McCormick
ultimately decided
that “a quid pro quo is []
necessary
for conviction under the Hobbs Act when an official receives
a campaign contribution.”
The path of the caselaw after
McCormick
strongly suggests we should construe First
Amendment principles broadly because they “treat the act of giving money as one of the central
means by which citizens participate in politics.” Deborah Hellman,
A Theory of Bribery
, 38
Cardozo L. Rev. 1947, 1988 (2017). In 2010, for example, the Court recognized that “a
substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a
contribution to, one candidate over another is that the candidate will respond by producing those
political outcomes the supporter favors.”
Citizens United
,
These cases that post-date
McCormick
and
Evans
reflect the strength with which the
Constitution guarantees the expression of speech through contributions to a campaign. These
precedents “protect[] contributions because contributing is a form of political participation.”
Hellman, at 1987. Because that is the case, politicians and donors deserve more protection from
prosecutors who seek to reach a jury merely by showing a donor’s campaign contribution on one
side and that donor’s “self-interest reflected in a candidate’s commitment” on the other.
See Brown
,
IV. Conclusion
This case is unusual, but it is by no means an aberration. If Sittenfeld’s verdict is allowed to stand, it may incentivize more prosecutions of campaign contributions in the future. The costs of not policing the sufficiency line may prove grievous. Writing for a unanimous court, the Chief Justice addressed the threat of overzealous corruption prosecutions:
The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm. The Government's position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ball game. Officials might wonder whether they could respond to even the most commonplace requests for assistance, and citizens with legitimate concerns might shrink from participating in democratic discourse.
McDonnell v. United States
,
The majority decides that the best way to handle the task facing us—one with no precedent directly on point, a high chance of jury confusion as to what the First Amendment protects, and a high cost if the jury gets it wrong—is to do nothing. This should not come as a surprise: no caselaw has grappled with circumstances as close to the line as these, and sufficiency challenges are almost always losers to begin with. Faced with the very real possibility that Sittenfeld assented to only a “good investment” in his candidacy rather than an agreement that “control[ed]” his actions, the majority responds that “[c]ampaign contributions will almost always have an inherent legitimate alternative explanation” and that “[t]his is also why matters of intent are for the jury to consider.” Majority Op. at 16 (citation omitted).
But this is exactly the wrong solution to the problem that the majority correctly identifies.
That a jury could interpret a raft of legitimate actions against an official suggests a high
likelihood that an innocent politician could be convicted. This should count as less reason, not
more, to give such an issue to a jury because of the constitutional concerns at stake. Judges, not
juries, decide when conduct falls within the protection of the Constitution.
See Sparf v. United
States
,
Because I believe the government did not present evidence sufficient to convict Sittenfeld of federal programs bribery or Hobbs Act extortion, I respectfully dissent.
Notes
[1]
The Supreme Court has recently offered helpful context about how illegal bribes arise.
Federal and state law distinguish between two kinds of payments to public officials—
bribes and gratuities. As a general matter, bribes are payments made or agreed to
before
an
official act in order to influence the official with respect to that future official act. American law
generally treats bribes as inherently corrupt and unlawful.
Snyder v. United States
,
[2] Despite those cavalier statements, Sittenfeld testified at trial that he would expect fundraisers and donors to tell the truth about the actual source of a donation.
[3] Sittenfeld mainly used the PAC to donate to candidates and organizations that he believed in.
[4] Sittenfeld’s 2019 meetings were relevant to other charges against him, but we do not describe them in detail here because his convictions were based on the 2018 quid pro quo.
[5] Counts 1 and 2 concerned conduct between about September 21, 2018, and February 4, 2020, and specific phone calls on November 21, 2018, and September 25, 2019. And counts 5 and 6 concerned conduct between about July 8, 2019, and February 5, 2020. The jury instructions repeated these date ranges.
[6] We granted Sittenfeld release pending appeal on May 15, 2024, after he had begun serving his sentence.
[7] Sittenfeld and the amici invoke the First Amendment and Due Process Clause. But Sittenfeld frames constitutional concerns as justifying the McCormick standard, not as making any statute unconstitutional. And the McCormick standard, as interpreted by the Sixth Circuit and others, permits the jury to infer a quid pro quo from circumstantial and less-than-conclusive evidence. The district judge acknowledged this important boundary between bribery and protected First Amendment activity. He expressly charged the jury to distinguish payments which would qualify as bribery (those made as “part of an explicit promise or understanding by the public official”) and those protected by the First Amendment (“contributions to public officials, or to PACs with which a public official is associated”). R. 251, Trial Tr. Day 11, pp. 43–44, PageID 4983–84.
[8]
As we see it, one way to understand whether the explicit quid pro quo requirement has been satisfied is to
ask what the proposed arrangement is, describing the terms that both parties would have understood as binding, in
plain English. And we can. Based on the circumstantial evidence, there are two possible agreements in this case.
The first option, arising out of the October 30, 2018 conversation, is straightforward: “If you give me campaign
donations, I will support your projects” or “If you don’t give me campaign donations, I won’t support your
projects.” The second, based on Sittenfeld’s interactions with Rob, is just as clear: “If you give me $20,000 in
campaign donations, I will deliver a veto-proof majority for your project.” There’s nothing ambiguous about these
proposed agreements.
That a jury can infer the existence of these agreements even if the evidence falls short of a smoking gun or
an express statement is not unusual in our criminal justice system. Juries retain “broad discretion” to draw
inferences from the evidence at trial.
United States v. Cox
,
[9] Sittenfeld argues that Rob’s trial testimony confirms this explanation. Rob simply acknowledged that he did not use the precise words “quid pro quo” and that Sittenfeld asked about the mayor vetoing the development deal. See R. 265, Trial Tr. Day 5, p. 230, PageID 6157. Rob’s testimony does little to clarify Sittenfeld’s state of mind.
[10]
Our cases regularly describe the overarching question for whether a constructive amendment happened as
whether the jury could have convicted the defendant of a separate “offense.”
United States v. Smith
,
[11]
It’s possible that earlier objections may be appropriate. If the constructive amendment is based on varied
evidence, objecting at the time that such evidence is admitted on the grounds that the evidence is irrelevant and
might result in a constructive amendment is another time to raise the issue.
See, e.g.
,
Cusmano
,
[12]
See, e.g.
,
Heyward v. Cooper
,
[13]
We have also said that a “general expression in an indictment may be restricted and confined to a precise
and definite fact by a description under a videlicet,” preventing an indictment from being duplicitous.
Beauchamp v.
United States
, 154 F.2d 413, 415 (6th Cir. 1946). The term “videlicet” is abbreviated “viz.,” Black’s Law
Dictionary (11th ed. 2019), and it is used to describe phrases like “to wit,” “that is to say,” and “namely.”
See State
v. Sudrala
,
[14]
See, e.g.
,
United States v. Davis
,
[15] Because a to-wit clause limits the scope of a defendant’s charge, we also reject the view that Sittenfeld’s conviction could stand based on a “conduit theory.” Any theory of liability that relies on the transitive property to tie Sittenfeld to Rob improperly broadens the scope of the defendant’s liability. Treating a bribe from Ndukwe as if
[16]
We have repeatedly acknowledged in several contexts that counsel’s closing arguments are not evidence,
but they are essential to the trial through which the parties can “argue reasonable inferences from the evidence” to
the jury.
United States v. Crosgrove
,
[17] The government asks, “how could Sittenfeld agree to anything based on Ndukwe’s reply” to Sittenfeld’s “love you but can’t” solicitation. Appellee Br. at 68–69. We do not find this argument persuasive. Sittenfeld was the offeror. The jury could have believed that he solicited a bribe, and that Ndukwe agreed to provide one, thereby accepting Sittenfeld’s offer.
[18]
Finally, Sittenfeld argues that the jury acquitted on count 1 precisely because it was relying on the
October 30 call with Ndukwe. But it’s not clear or obvious that the jury made such a decision. That the jury
resulted in a split verdict tells us nothing of the jury’s reasoning.
Cf. Bravo-Fernandez v. United States
,
[20]
Both issues also implicate a defendant’s Sixth Amendment right to a unanimous jury verdict.
See United
States v. Campbell
,
[21]
We recognize that Rob and Ndukwe were not victims in the traditional sense. But an extorted person
may be considered a victim in at least some cases.
See United States v. Capo
,
[22]
Other examples abound. We have said in dicta that “[s]eparate allegedly false statements” under 18
U.S.C. § 1001 “are entirely separate offenses.”
United States v. Dedman
,
[23] Someone violates 18 U.S.C. § 666(a)(1)(B) when, acting as an agent of a local, state, or tribal government he “corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more.”
[24] A violation of the Hobbs Act is established by demonstrating a person “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion [as defined in § 1951(b)(2)] . . . to any person or property in furtherance of a plan or purpose to do anything in violation of this section.” 18 U.S.C. § 1951(a).
[1] Because the evidence is insufficient to uphold the verdict, it is not necessary to address Sittenfeld’s argument that the prosecution constructively amended the indictment at trial.
[2] One obvious critique of this claim is that necessarily the politician already made the promise, so reiterating it cannot qualify as contract-like consideration to complete the quid pro quo.
[3] I agree with Judge Murphy and the three dissenting justices in Evans that the Hobbs Act, properly construed, should apply only to officials who tell people that their office entitles them to a payment. See Evans , 504 U.S. at 282–83 (Thomas, J., dissenting).