Dimora v. United States
| Decision Date | 14 March 2022 |
| Docket Number | 1:17-cv-1288,1:10-cr-387-1 |
| Court | U.S. District Court — Northern District of Ohio |
| Parties | JAMES C. DIMORA, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT. |
In 2012, following a 37-day jury trial, petitioner James C Dimora (“Dimora”) was convicted of thirty-two counts of numerous 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, after an appeal to the Sixth Circuit, his convictions and sentence were affirmed. The United States Supreme Court subsequently denied certiorari review.
Four years after the jury returned its verdicts against Dimora, the Supreme Court in McDonnell v. United States, --U.S.--, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016), narrowed and focused the legal definition of “official act” in the federal bribery statute, 18 U.S.C. § 201(a)(3). Relying on the decision in McDonnell, Dimora moved to vacate his convictions, maintaining that the conduct for which he was convicted no longer qualified as “officials acts” under the law.
(Doc. No. 1162 (28 U.S.C. § 2255 Motion).) In a decision dated October 22, 2018, the Court denied the motion to vacate. (Doc. No. 1196 (Memorandum Opinion); Doc. No. 1197 (Judgment Entry).) On August 31, 2020, a panel of the Sixth Circuit vacated the Court's ruling, finding that the Court's definition of “official act” in its jury instructions failed to comport with the narrowed definition later announced in McDonnell. Dimora v. United States, 973 F.3d 496, 505 (6th Cir. 2020) (“Although we do not fault the trial court for failing to anticipate McDonnell, we conclude that its instructions were erroneous in light of that decision.”) The Sixth Circuit remanded the matter to this Court for the limited purpose of re-applying the harmless error standard to determine “whether the instructional error substantially influenced the jury's verdict” on certain identified counts. Id. at 506.
Following remand, the Court ordered the parties to submit supplemental briefs, but at the request of Dimora, the Court stayed its briefing schedule while Dimora appealed the Sixth Circuit's decision. On March 23, 2021, the Supreme Court denied Dimora's request for certiorari review. (Doc. No. 1216.) Thereafter, the Court set a new briefing schedule, and the parties submitted their supplemental briefs. (Doc. No. 1221 (Government's Supplemental Brief); Doc. No. 1222 (Dimora's Supplemental Brief); Doc. No. 1223 (Dimora's Notice of Clarification).) Having reviewed the record and the parties' briefing, and in light of the Sixth Circuit's directions and limitations on remand, the Court hereby grants in part, and denies in part, Dimora's motion to vacate.
A. The Case Against Dimora
Even though this Court and the Sixth Circuit have addressed the facts of this case on numerous occasions, to properly conduct the harmless error analysis, it is necessary to revisit the facts of this case as they developed during trial. 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”). According to the government, Dimora and Russo were the “centers of influence” for the county government. )
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. 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.[2] (See Ohio Rev. Code §§ 307.01 et seq.)
United States v. Dimora, 750 F.3d 619, 623 (6th Cir. 2014). At trial, much of the government's case centered around illustrating how the evidence gleaned during the investigation demonstrated that Dimora exercised his authority and influence as county commissioner to control virtually every aspect of county government, and, by so doing, facilitated multiple fraud and bribery schemes designed to trade official acts for things of value.
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 24-25; see id. at 61.) 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 24-29.) One thing remained constant-Dimora never paid the bill. (Doc. No. 1024, Tr. Jury Trial Vol. 15 (Kelley), at 140.)
The sponsors included Kevin Kelley, Steve Pumper, Michael Forlani, Ferris Kleem, and Rob Rybak. (Doc. No. 1039, Tr. Jury Trial Vol. 26 (Russo), at 35, 40-41.) 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 39.) 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 (Id. at 55-56; see also id. at 150.)
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 other 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 handicapped accessible bridge in the City of Berea, Ohio, showcased his influence and his ability to pressure other 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 25-26.) 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 130-31.) 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).)
After the lengthy jury trial, wherein the jury heard this and a wealth of other testimony regarding Dimora's corrupt schemes, the jury returned guilty verdicts, on all but one charge. On August 1, 2012, the Court sentenced Dimora to a within-guidelines sentence of 336 months of imprisonment, to be followed by three years of supervised release. The Court also imposed restitution. (Doc. No. 957 (Dimora Judgment).)
On direct appeal, Dimora challenged the district court's jury instructions and refusal to admit certain end-of-year ethics reports that would have shown that Dimora reported receiving certain unspecified gifts from various individuals and entities. With respect to the...
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