Dimora v. United States

• Decision Date: 22 October 2018
• Docket Number: CASE NO. 1:10CR387,CASE NO. 1:17-cv-1288
• Parties: JAMES C. DIMORA, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT.
• Court: U.S. District Court — Northern District of Ohio

JAMES C. DIMORA, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT.

CASE NO. 1:10CR387

CASE NO. 1:17-cv-1288

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

October 22, 2018

JUDGE SARA LIOI

MEMORANDUM OPINION

In 2012, petitioner James C. Dimora ("Dimora") was tried by a jury and convicted of multiple federal crimes, including extortion, bribery, money and property mail and wire fraud and honest services mail and wire fraud, racketeering, obstruction, falsifying documents, and tax evasion, as well as conspiracy to commit many of these crimes. He was sentenced by this Court, and, thereafter, he unsuccessfully appealed the Court's judgment to the Sixth Circuit Court of Appeals and was ultimately denied certiorari review by the United States Supreme Court.

Dimora now returns to this Court, by and through his counsel, seeking collateral review of his convictions and sentence under 28 U.S.C. § 2255. (Doc. No. 1162 ["Mot."].) His motion is grounded in the Supreme Court's ruling in McDonnell v. United States, -- U.S. --, 136 S. Ct. 2355, 195 L. Ed. 2d 639 (2016), which narrowed and focused the legal definition of "official act" in the federal bribery statute, 18 U.S.C. § 201(a)(3). According to Dimora, the activities for which he was convicted no longer qualify as "official acts" under the law.

But unlike McDonnell, the facts in this case involve a multitude of official acts, and the instructions do not suffer from the same deficiencies. "Through thousands of wiretaps and other means, the investigation revealed that Dimora's tenure as [Cuyahoga County Commissioner] was rife with quid pro quo arrangements between him and individuals seeking favors of one sort or another from the county and other governments. He handed out public jobs, influenced Cleveland decision-makers and steered public contracts in return for approximately 100 bribes worth more than $250,000." United States v. Dimora, 750 F.3d 619, 623 (6th Cir. 2014). Accordingly, Respondent United States of America ("government") opposes the motion, arguing that the evidence offered at trial overwhelmingly supports a finding that Dimora traded official acts for bribes, even after McDonnell. (Doc. No. 1182 ["Opp'n"]; see Doc. No. 1189 ["Reply"].)

I. BACKGROUND

Even though the underlying facts of this case have been set forth in numerous opinions at the trial and appellate level, in light of the ruling in McDonnell, it is necessary to revisit the salient facts in some detail. In 2007, the Federal Bureau of Investigation ("FBI") launched a multi-year probe into political corruption in Cuyahoga County, Ohio. At the heart of the investigation were two men: Dimora and Frank Russo ("Russo"), who were the "centers of influence" for the county government. (Doc. No. 1038, Tr. Jury Trial Vol. 25 (Randazzo), at 28817.¹) Russo served as County Auditor, and his department was the single largest in the county government.

Dimora was one of three elected members of the Board of County Commissioners("BOCC"), and his influence and authority as a member of this board was significant.² The BOCC had the statutory power to, among other things: enter into contracts with other governmental units; purchase, lease, or construct county facilities; sell, lease, or rent any real property owned by the county and not used for public purposes; appropriate funds for the court of common pleas; approve loans or grants for economic development; issue bonds to secure grants in excess of the community improvement fund; and enter into agreements for construction or repair of county infrastructure. (See Ohio Rev. Code §§ 307.01 et seq.) The BOCC also had control over the budgets for the various county departments, including the Auditor's Office and the Common Pleas Court. (Doc. No. 1026, Tr. Jury Trial Vol. 18 (Kelley), at 26219-20; Doc. No. 1017, Tr. Jury Trial Vol. 10 (Pokorny), at 24135.)

Testimony at Dimora's trial demonstrated that he also had authority over the many municipalities within the county. Several witnesses testified as to Dimora's financial control over county suburbs like Bedford, (Doc. No. 1019, Tr. Jury Trial Vol. 12 (Massie), at 24830, 24838-39), including contracts for suburban road construction (Doc. No. 1015, Tr. Jury Trial Vol. 8 (Dever), at 23773-79), and the distribution of grant money between the municipalities. (Doc. No. 1034, Tr. Jury Trial Vol. 21 (Oyaski), at 27550-51.) During this time period, Dimora also served as the county chair of the Democratic Party, making him ideally connected to all of the major power brokers in the county.

The investigation revealed that Dimora and Russo used their government positions tobenefit themselves and their co-conspirators through multiple fraud and bribery schemes designed to trade official acts for things of value. Through these schemes, Dimora and Russo were believed to have corruptly affected and influenced the awarding of county contracts and grants, the hiring of county employees (including the hiring of ghost employees), the results of at least one county election, and the outcome of civil litigation in various county and municipal courts. See generally Dimora, 750 F.3d at 623. In addition to Russo and Dimora, more than sixty individuals—including other public officials, county judges, and private business executives—were ultimately indicted, and all but one were convicted. The vast majority of these individuals entered into plea agreements, some went to trial, and a number of them, like Russo, testified at Dimora's trial.

Dimora, along with his co-defendant, Michael Gabor ("Gabor") (one of the ghost employees hired in the Auditor's Office), were two of the last defendants to go to trial. Much of the focus of the trial was the vast authority Dimora had over the day-to-day activities of the county government, and his ability to exploit that authority to obtain things of value for himself and his friends. Russo testified that he and Dimora enjoyed socializing with a group of local businessmen and county officials they dubbed the "A Team" or the "in-crowd" or the "in-circle," and they used "sponsors" to fund the group's activities. (Doc. No. 1039, Tr. Jury Trial Vol. 26 (Russo), at 28886-87; see id. at 28923.) If no sponsor attended a dinner or event, a member of the group would make calls to find one. Sometimes they asked for a sponsor's credit card number to pay the bill. (Id. at 28886-91.) One thing remained constant—Dimora never paid the bill. (Doc. No. 1024, Tr. Jury Trial Vol. 15 (Kelley), at 25751.)

The sponsors included Kevin Kelley, Steve Pumper, Michael Forlani, Ferris Kleem, andRob Rybak. (Doc. No. 1039, Tr. Jury Trial Vol. 26 (Russo), at 28897, 28902-03.) In exchange for providing these dinners and other things of value, "[s]ponsors received personal attention on anything that came up," such as a "daughter getting a parking ticket, a son wanting a [county] job, a brother being [a] contractor and wanting a contract, there were multiple, multiple issues at all times that [the sponsors] had us [Dimora and Russo] doing for them." (Id. at 28901.) In other words, if you were a sponsor, you "got special treatment." (Id.)

Russo explained that the sponsors tailored their gifts to the things that Dimora enjoyed. Dimora "loved his backyard. . . . [I]t was the number one thing in his life. If anybody could help him in the backyard [with improvements such as a pool, outdoor kitchen and pizza oven, granite counter tops, tiki hut, etc.], it was a great privilege to him. The second thing was [Dimora] liked fine food and fine alcohol, only the best. Big thick steaks, Crown Royal . . . . [T]he third thing was . . . that [Dimora] like[d] cash from people. . . . And the fourth thing [was] [Dimora] like[d] pretty girls and prostitutes." (Id. at 28917-18; see also id. at 29012.)

One of the first sponsors to testify, Ferris Kleem ("Kleem"), a local contractor who owned construction companies and held interests in other businesses, explained that he helped finance a trip to Las Vegas for Dimora and his friends, paying for the airfare, hotel accommodations, alcohol, expensive dinners, gambling, trips to an exclusive swimsuit optional pool, and prostitutes. In exchange for these and others things of value given to Dimora over time, Dimora voted to award Kleem county construction contracts, obtained a county position for one of Kleem's relatives, assisted Kleem's cousin in obtaining a grant for his municipality, and fixed a county smoking violation issued against a restaurant in which Kleem held an interest.

Dimora's efforts to secure the Coe Lake grant, a construction grant to fund a handicap accessible bridge in the City of Berea, Ohio, showcased his influence and his ability to pressureother public officials. Kleem's cousin (who was the Mayor of Berea) recalled a three-way telephone conversation with County Development Director Tracy Nichols ("Nichols") in which Nichols was much more deferential and cooperative regarding Kleem's efforts to obtain the Coe Lake grant for his cousin's community when Dimora was on the line. In the conversation, Dimora advocated Kleem's cousin's position that HUD guidelines permitted funding for handicapped accessibility projects, a position which Nichols had previously opposed. (Doc. No. 1029, Tr. Jury Trial Vol. 31 (Cyril Kleem), at 26898-99.) Nichols later testified that she made re-examining her rejection of the Coe Lake grant a priority because Dimora had called her about it, and he was her boss. (Doc. No. 1030, Tr. Jury Trial Vol. 32 (Nichols), at 27111-12.) Nichols ultimately did change her mind, and Dimora's efforts culminated in his casting a vote to approve the Coe Lake grant. (Gov't Trial Ex. 400-G (County Agenda Action).)

Another sponsor, Steve Pumper ("Pumper"), also spoke to Dimora's considerable power and influence. He testified that he was willing to pay Dimora bribes to gain access to that influence. He explained:

You know, [Dimora] was one vote out of three on the [BOCC]

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