Dimora v. United States

• Decision Date: 31 August 2020
• Docket Number: No. 18-4260,18-4260
• Citation: 973 F.3d 496
• Parties: James C. DIMORA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

973 F.3d 496

James C. DIMORA, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 18-4260

United States Court of Appeals, Sixth Circuit.

Argued: April 16, 2020

Decided and Filed: August 31, 2020

PER CURIAM.

In 2012, a federal jury convicted James Dimora of numerous bribery-related offenses committed during his tenure on the Board of County Commissioners for Cuyahoga County, Ohio. Four years later, in McDonnell v. United States , ––– U.S. ––––, 136 S. Ct. 2355, 195 L.Ed.2d 639 (2016), the Supreme Court gave a narrow construction to a key element included within several of those offenses. Dimora then petitioned to vacate his convictions under 28 U.S.C. § 2255, arguing that the jury instructions used at his trial were faulty in light of McDonnell . The district court denied relief. For the reasons that follow, we VACATE the district court's order, DENY Dimora's request to expand the scope of the Certificate of Appealability, and REMAND for further proceedings consistent with this opinion.

I.

From 1998 until 2010, Dimora served as one of three elected commissioners on the Board of County Commissioners for Cuyahoga County. At that time, the Commissioners served as the official head of County government; as such, they wielded significant control over the County's affairs.¹ For example, the Commissioners had the authority to purchase or lease property; construct County facilities; sell, lease, or rent County property; approve economic development loans and grants; approve budgets for various departments of County government; and enter into certain contracts on behalf of the County. See Ohio Rev. Code § 307.01 et seq .

In 2007, the FBI launched an investigation into public corruption in Cuyahoga County. The investigation revealed that Dimora had received over $250,000 in gifts (or as the FBI and jury would later conclude, bribes) from individuals with business before the County. These gifts included home renovations, expensive dinners, trips to Las Vegas, and encounters with prostitutes. At the same time, Dimora had used his position as County Commissioner to help the gift givers in various ways. The investigation concluded that he had corruptly influenced the awarding of County contracts and grants, the hiring of County employees, the results of at least one County election, and the outcome of civil litigation in County and municipal courts. Dimora's "influence" on these matters ranged from casting formal votes as Commissioner to calling, meeting, and pressuring other relevant officials.

A federal grand jury indicted Dimora on thirty-four counts in September of 2011. The indictment charged seventeen counts of Hobbs Act conspiracy and Hobbs Act offenses under 18 U.S.C. § 1951 ; four counts of bribery concerning programs receiving federal funds under 18 U.S.C. §§ 666(a)(1)(B) and 2; four counts of making false statements on tax returns under 26 U.S.C. § 7206(1) ; two counts of conspiracy to commit mail fraud and honest services mail fraud under 18 U.S.C. §§ 1341, 1346, and 1349 ; two counts of conspiracy to commit bribery concerning programs receiving federal funds under 18 U.S.C. § 371 ; one count of conspiracy to commit wire fraud and honest services wire fraud under 18 U.S.C. §§ 1343, 1346, and 1349 ; one count of RICO conspiracy under 18 U.S.C. § 1962(d) ; one count of mail fraud under 18 U.S.C. § 1341 ; one count of conspiracy to obstruct justice under 18 U.S.C. §§ 371 and 1512 ; and one count of obstructing a federal investigation under 18 U.S.C. §§ 1519 and 2. Dimora pleaded not guilty and the case proceeded to trial.

Dimora's trial lasted for thirty-seven days. The government's star witness was Frank Russo, who served as County Auditor when Dimora was Commissioner. Russo testified that he and Dimora maintained an elaborate network of "sponsors" who financed their social activities and provided them with gifts in exchange for "personal attention" on matters pending before the County. These matters ranged from "a daughter getting a parking ticket" to "a son wanting a [County] job" to "a brother ... wanting a contract [with the County]."

The government also presented testimony from the so-called "sponsors." For example, Ferris Kleem—a local contractor and businessman—testified that he had provided Dimora with dinners, jewelry, a television and refrigerator, and a trip to Las Vegas that included flights, a hotel suite, gambling money, and an encounter with a prostitute. Kleem explained that he had provided these gifts to stay in Dimora's "good graces" and "gain influence [in] Cuyahoga County." And, according to Kleem, Dimora returned the favor: he helped Kleem obtain a development grant from the County and win a construction bid for the County's new Juvenile Justice Center, while also arranging for Kleem's cousin to obtain a job with the County and assisting Kleem's brother with a smoking violation filed against his restaurant.

Several other sponsors testified as well. Their testimony shared a similar theme: each had provided Dimora with substantial gifts with the hope and expectation that he would later use his influence to help them with County business; and Dimora did, in fact, deliver on that expectation for each of them. As one sponsor testified regarding Dimora and Russo, "they helped me; I helped them."

Two components of Dimora's defense are relevant here. First, Dimora sought to introduce ethics reports in which he disclosed that he had received unspecified gifts valued at more than $75 from most of the sponsors who testified. These reports, he argued, would show that he had not acted with a corrupt intent. But, after the government objected, the district court ruled that the reports were inadmissible. The court concluded that the reports contained "hearsay statements by Mr. Dimora" and their admission would be "tantamount to permitting [Dimora] to testify without being cross-examined." Additionally, the court believed that the reports would be "very confusing" to the jury. The ethics reports, consequently, were excluded at trial.

Second, Dimora attempted to show that any favors he provided to the sponsors were insufficient to support a bribery conviction.² Under the bribery statutes, the government needed to prove that Dimora had agreed to commit an "official act" in exchange for items of value. See 18 U.S.C. § 201.³ Dimora sought to narrowly define the scope of that term. He proposed jury instructions that, as relevant here, would have told the jury that "official acts" did not include "merely ... recommending or introducing a giver to other decision makers."

The district court rejected Dimora's proposed instructions. Instead, the court adopted the following language:

The term "official act" includes any decision or action on any question, matter, cause, suit, proceeding, or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit. Official acts include the decisions or actions generally expected of the public official. In addition, "official action" includes the exercise of both formal official influence (such as a public official's votes) and informal official influence (such as a public official's influence on other public officials). The term "official act" does not include actions taken in a personal or non-official capacity, such as actions taken as a political party leader.

R. 735-1, PageID 16988–89 (emphasis added). Dimora objected, arguing that this definition was "too broad." The district court overruled that objection and the above definition was included in the court's jury instructions at the end of trial.

The jury convicted Dimora on thirty-three of the thirty-four counts, including all of the bribery charges. After trial, Dimora moved for a new trial.⁴ Relevant here, he argued that the district court had erred by (i) instructing the jury to use an overly broad definition of "official acts," and (ii) excluding his state ethics reports at trial. The district court denied Dimora's motion.

Dimora reiterated those same two arguments on appeal. United States v. Dimora , 750 F.3d 619, 624–30 (6th Cir. 2014). Our court rejected the jury-instruction claim, concluding that the "instructions fairly trace[d] the line between permissible gifts and impermissible bribes." Id. at 625. We agreed, however, that the district court erred when it ruled that the ethics reports were inadmissible hearsay. Id. at 628. Yet because we concluded that "overwhelming evidence" showed that Dimora had "made phone calls and held meetings on the bribers’ behalf," we held that the district court's error was harmless and affirmed Dimora's convictions. Id. at 628–30. But see id. at 632–33 (Merritt, J., dissenting).

Two years later, the Supreme Court construed the term "official act" to exclude most phone calls and meetings. See McDonnell , 136 S. Ct. at 2367–68. McDonnell involved the former governor of Virginia who, like Dimora, had been charged with various bribery offenses, including Hobbs Act extortion and honest services fraud. Id. at 2365. And like here, the trial court in McDonnell had instructed the jury that "official acts" include any "acts that a public official customarily performs." Compare id. at 2366, with R. 735-1, PageID 16988–89 (defining official acts to include "decisions or actions generally expected of the public official"). The Supreme Court vacated McDonnell's convictions, concluding that constitutional concerns and the statutory text required a narrow reading of the term "official acts." See McDonnell , 136 S. Ct. at 2367–73, 2375. "[S]etting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an ‘official act.’ " Id. at 2368. Instead, the Court held that "official acts" are limited to "formal exercise[s] of governmental power." Id.

Dimora filed a petition to vacate his conviction under 28 U.S.C. § 2255. H...