Cordaro v. United States

• Decision Date: 05 August 2019
• Docket Number: No. 18-1022,18-1022
• Citation: 933 F.3d 232
• Parties: Robert C. CORDARO, Appellant v. UNITED STATES of America
• Court: U.S. Court of Appeals — Third Circuit

933 F.3d 232

Robert C. CORDARO, Appellant

v.UNITED STATES of America

No. 18-1022

United States Court of Appeals, Third Circuit.

Argued: September 26, 2018

Filed: August 5, 2019

Brian T. Kelly [ARGUED], Charles Dell’Anno, Nixon Peabody, Exchange Place, 53 State Street, Boston, MA 02109, Counsel for Appellant

Stephen R. Cerutti, II [ARGUED], Office of United States Attorney, 228 Walnut Street, P.O. Box 11754, 220 Federal Building and Courthouse, Harrisburg, PA 17108, Counsel for Appellee

Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges.

OPINION OF THE COURT

CHAGARES, Circuit Judge.

In 2011, Robert Cordaro was convicted of bribery, extortion, and racketeering, along with other crimes. At his trial, the court instructed the jury that those crimes required an "official act." In 2016, however, the Supreme Court clarified what does — and does not — constitute an "official act" in McDonnell v. United States, ––– U.S. ––––, 136 S. Ct. 2355, 195 L.Ed.2d 639 (2016). Cordaro believes that the McDonnell decision makes his conduct noncriminal and so petitions for a writ of habeas corpus under 28 U.S.C. § 2241. The District Court correctly concluded that Cordaro cannot show that he is actually innocent — that is, that it is more likely than not that no reasonable juror properly charged under McDonnell would have convicted him. We will affirm.

I.

In November 2003, Cordaro and his co-defendant A.J. Munchak were elected as two of the three county commissioners for Lackawanna County, Pennsylvania. They began exploiting their positions for financial gain almost right after their terms began in January 2004, particularly with two local engineering firms, Acker Associates and Highland Associates.

A.

Acker Associates is a civil-engineering firm whose principals are Ken Acker and P.J. McLaine. In 2003 and 2004, about 30 percent of Acker Associates’ business was municipal engineering, mostly for Lackawanna County. McLaine testified that he actively supported Cordaro’s opponents in the 2003 campaign. When Cordaro and Munchak were elected, McLaine was concerned about keeping Acker Associates’ current county contracts. McLaine brought those concerns to Al Hughes, a close friend of Cordaro, who agreed to talk to Cordaro to see if McLaine could meet with him and "do something about it." Joint Appendix ("J.A.") 523 (McLaine).

Hughes arranged for McLaine to meet with Cordaro in early 2004, telling McLaine to bring a list of the existing work that Acker Associates did for the county. McLaine’s list included a contract to work on the Lackawanna Watershed 2000 Program, a multi-year watershed project based on a $30 million congressional grant. McLaine testified that the grant was in the county commissioners’ names and that they had hired Acker Associates for the work. When work started on the watershed project in 2003, Acker Associates brought on seven new employees and bought a new truck and computer. McLaine’s list also included contracts to work on the Main Street Bridge in Taylor, Pennsylvania, and the Gilmartin Street Bridge in Archbald, Pennsylvania; work for the Lackawanna County Community Development and Redevelopment Authority, Housing Authority, River Basin Authority, and Valley Authority; and other work related to surveying, paving, and mapping.

Cordaro and McLaine met in person. McLaine testified that Cordaro told him, "I think I can let you keep that, ... but you have to make sure you let us know everything that’s going on. And if we’re having fundraisers you’re going to have to participate and support us." J.A. 526; see also J.A. 593 (McLaine) ("So, if they have an affair, a fundraiser, that we have to participate."). McLaine agreed and "felt wonderful" after the meeting. J.A. 526.

In late spring or summer 2004, McLaine received a call from another engineering firm, CECO Associates, saying that it was taking over the design aspects of the Taylor Bridge contract. McLaine called Hughes, who called Cordaro. Again Hughes set up a meeting with McLaine and Cordaro, at which McLaine explained the phone call and argued that Acker Associates should keep the contract. Cordaro "thought for a few minutes and said, ‘P.J., you can keep the contract. ... Call CECO and tell them that you’re going to finish the project.’ " J.A. 528–29 (McLaine). McLaine "called CECO and told him [that Acker Associates was] going to finish the project. They said okay." J.A. 529.

In fall 2004, McLaine got a call from the lead consultants of the Lackawanna Watershed 2000 Program. They asked to sit down with McLaine to discuss the project’s progress and schedule. At this meeting, the consultants said that they were considering splitting up the project and giving parts out to other firms.

Again McLaine called Hughes, who called Cordaro. Hughes testified that Cordaro asked him, "[d]o you think he’d want to help, you know, supporting — supporting us — supporting me to keep his work?" J.A. 621. Hughes responded, "how much money would you think would be legitimately, you know, to give for the work," and Cordaro said "maybe $15,000." J.A. 621–22 (Hughes).¹

After this conversation with Cordaro, Hughes told McLaine that if he gave him $10,000 a month for Cordaro, Hughes could guarantee that Acker Associates would keep all of its existing work. McLaine asked whether he would lose his work if he did not pay, and Hughes said that he probably would. Hughes also asked whether McLaine knew the principals of Highland Associates — he did — and whether McLaine would convey the same arrangement to them. McLaine agreed to call Highland Associates, but said he would need to talk to his partner Ken Acker before Acker Associates agreed to the payments.

McLaine and Ken Acker discussed the matter. Acker asked McLaine whether they could lose their contracts if they did not pay, and McLaine said that according to Hughes they could. They decided that they did not want to take the chance, given the employees they had hired and the money they had invested because of their county contracts, especially the watershed project. They decided to go along.

Payments began in January 2005. For the first payment, McLaine and Acker paid themselves bonuses by check, cashed the checks, and delivered the cash to Hughes. They paid cash for four months and then began to pay with company and personal checks. McLaine would meet Hughes in parking lots and diners to make the payments. In the Acker Associates books, McLaine would label the expenses as consulting work. For every month from January 2005 to November 2007 (when Cordaro lost reelection), Acker Associates paid $10,000 to Hughes to forward to Cordaro, including one $15,000 payment because McLaine "had gotten another ... contract[ ]." J.A. 626 (Hughes).

B.

Highland Associates is an architectural-engineering firm whose principals are Domenic Provini, Kevin Smith, and Don Kalina.

In January 2004, as Al Hughes had requested, McLaine called Domenic Provini about making monthly payments to Cordaro. They met, and McLaine told Provini the same thing that Hughes said to him: "[i]f Highland would give Al [Hughes] $10,000 to Bob [Cordaro] they would be able to keep all their work also." J.A. 532 (McLaine). Provini notified his partners about this "cash contributions for work" arrangement. J.A. 714 (Kalina). At that time, they decided they did not want to participate. Highland Associates nevertheless received new county contracts that spring to work on a courthouse, a public safety center, an intermodal center (an epicenter for bus, cab, and railroad transportation), and a stadium in Lackawanna County.

In April 2005, however, Munchak invited Don Kalina to lunch and said, "[w]ell, you know, you talked to P.J. McLaine and we need some cash." J.A. 715 (Kalina). At that point, Highland Associates had nearly $1.4 million in outstanding accounts receivable with Lackawanna County, so Kalina and his partners felt compelled to comply. They pooled $10,000 apiece, and Kalina paid it to Munchak. Cordaro called Kalina and thanked him for the contribution that afternoon or the next morning.

In June 2005, Munchak called Kalina again with the message that "we need some more cash." J.A. 722 (Kalina). The county still owed Highland Associates $1.3 million, so Kalina and his partners still felt that they had to pay. Again they gave $30,000 to Munchak.

In July or early August 2005, Cordaro met with James Finan, then the chairman of the board of directors of the County of Lackawanna Transit System (COLTS) and also the county’s director of transportation. COLTS is a separate legal authority from the county, with a five-person board of directors. Board members are appointed by the county commissioners. Finan testified that Cordaro asked him to get ahold of "the architects on the center COLTS was building" — the intermodal center — "and ask[ ] them to step aside and go forward with just Highland Associates." J.A. 791. Finan did. He contacted one of those architects and asked if they "would mind stepping aside from this project," explaining that COLTS "wanted to go forward with just one architect and that being Highland." J.A. 792 (Finan). Finan followed that conversation up with a letter, dated August 5, 2005, which memorialized that COLTS was "terminating [its] contract ... for any further services regarding the intermodal center" because it had "decided to go forward with the project with only one architectural and engineering firm, Highland Associates." J.A. 792. The letter called this decision a "monetary and common sense issue." J.A. 792. Finan testified that he "was asked to contact them and ask[ ] them to step aside by Mr. Cordaro." J.A. 793.

Cordaro was then "prominent in the negotiation" of COLTS’s contract with Highland Associates during August 2005. J.A. 794 (Finan). In October 2005, the COLTS board approved that contract. Two of the three voting board members, including Finan, had been appointed by Cordaro. Although federal law required it to solicit at least three proposals and conduct...