United States v. Dimora

• Decision Date: 18 July 2012
• Docket Number: Case No. 1:10CR387.
• Citation: 879 F.Supp.2d 718
• Parties: UNITED STATES of America, Plaintiff, v. James C. DIMORA, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

879 F.Supp.2d 718

UNITED STATES of America, Plaintiff,

v.James C. DIMORA, et al., Defendants.

Case No. 1:10CR387.

United States District Court,

N.D. Ohio,

Eastern Division.

July 18, 2012.

Ann C. Rowland, Antoinette T. Bacon, Heather Tonsing Volosin, James L. Morford, Robert J. Patton, Office of the U.S. Attorney, Cleveland, OH, Nancy L. Kelley, Office of the U.S. Attorney, Akron, OH, for Plaintiff.

Andrea L. Whitaker, William T. Whitaker, Jr., Law Office of William T. Whitaker, Akron, OH, J. Michael Murray, Lorraine R. Baumgardner, Berkman, Gordon, Murray & Devan, William T. McGinty, McGinty, Hilow & Spellacy, David G. Oakley, Leif B. Christman, Robert J. Rotatori, Rotatori Bender, Paul M. Shipp, Weston Hurd, William T. Doyle, Cleveland, OH, John F. Corrigan, Rocky River, OH, Michael P. Maloney, Westlake, OH, for Defendants.

MEMORANDUM OPINION & ORDER

SARA LIOI, District Judge.

Before the Court are defendant James C. Dimora's motion for a judgment of acquittal (Doc. No. 874) and motion for a new trial (Doc. No. 875). The government has responded in opposition to both motions. (Doc. Nos. 882, 902.) The Court will also address Dimora's motion to modify the protective order (Doc. No. 782), which was also opposed by the government (Doc. No. 859).

I. Background

In 2007, the Federal Bureau of Investigation launched a large-scale probe into potential public corruption in local government. Targeting political and business activity in Cuyahoga County, Ohio, the investigation to date has resulted in over 60 arrests and numerous criminal charges. Most of those charged have entered into plea agreements with the federal government, a few have gone to trial, and several others are still awaiting trial. Dimora and his co-defendant, Michael Gabor, were among those charged who elected to go to trial.

Between 1998 and 2010, Dimora served as an elected county commissioner for Cuyahoga County. It was the government's theory that he and Frank Russo, who served for much of this same period as county auditor, orchestrated a conspiracy whereby the two men would benefit themselves, their co-conspirators, and their designees, by using the power and authority of their public offices to elicit monetary and in-kind bribes in exchange for public contracts, employment with the county, and other special government benefits.

At all times relevant to the federal investigation, Gabor was employed by the Cuyahoga County Auditor's Office. Evidence presented at trial demonstrated that Gabor used his long-standing relationship with Dimora to secure work in the auditor's office under Russo, and paid Russo a fee of $5,000 for his position in the Department of Weights and Measures.

By the Third Superseding Indictment,¹ Dimora was charged, along with Gabor, in Count 1 with RICO conspiracy. He and Gabor were also charged with conspiracy to commit bribery concerning programs receiving federal funds, Hobbs Act conspiracy, and conspiracy to obstruct justice. Dimora was separately charged with conspiracy to commit mail fraud and honest services mail fraud; bribery concerning programs receiving federal funds; substantive Hobbs Act violations; conspiracy to commit wire fraud and honest services wire fraud; destruction, alteration or falsification of records; mail fraud and honest services mail fraud; and making false statements on income tax returns.

On March 9, 2012, after a 37 day jury trial, the jury returned guilty verdicts against Dimora as to 33 of 34 counts in which he was charged. He was acquitted by the jury on one count. The charges of which Dimora was found guilty included: RICO conspiracy; conspiracy to commit mail and wire fraud and honest services mail and wire fraud; Hobbs Act conspiracy and Hobbs Act extortion; bribery concerning programs receiving federal funds; tax fraud; obstruction of justice; and destruction of records. (Dimora Verdicts, Doc. No. 738.) Dimora's co-defendant, Michael D. Gabor, was found guilty by the jury on seven counts charging similar fraud and conspiracy-related offenses. He, too, was acquitted by the jury on one count. (Gabor Verdicts, Doc. No. 739.)

In his motion for judgment of acquittal, brought under Rule 29 of the Federal Rules of Criminal Procedure, Dimora requests that the Court grant a judgment of acquittal on all counts of which he was convicted on the ground that the evidence was insufficient to support the verdicts. In the alternative, and with respect to his Rule 33(a) motion, Dimora argues that he is entitled to a new trial because the verdicts are against the manifest weight of the evidence, and that the interests of justice otherwise require a new trial.

II. Standards

If the defendant moves for a judgment of acquittal after the government concludes its case, the Court “must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed.R.Crim.P. 29(a). “The relevant inquiry is whether, viewing 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. Fisher, 648 F.3d 442, 450 (6th Cir.2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)). “Under the Jackson v. Virginia standard, a reviewing court does not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgmentfor that of the jury.' ” Id. (quoting Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.2009)). “ ‘Substantial and competent circumstantial evidence by itself may support a verdict and need not remove every reasonable hypothesis except that of guilt.’ ” Id. (quoting United States v. Lee, 359 F.3d 412, 418 (6th Cir.2004)).

A motion for a new trial is governed by Rule 33 of the Federal Rules of Criminal Procedure, which provides that the court may “vacate any judgment and grant a new trial if the interest of justice so requires.” Fed.R.Crim.P. 33(a). “The paradigmatic use of a Rule 33 motion is to seek a new trial on the ground that the [jury's] verdict was against the manifest weight of the evidence.' ” United States v. Munoz, 605 F.3d 359, 373 (6th Cir.2010) (quoting United States v. Crumb, 187 Fed.Appx. 532, 536 (6th Cir.2006)). “Generally, such motions are granted only in the extraordinary circumstance where the evidence preponderates heavily against the verdict.' ” United States v. Graham, 125 Fed.Appx. 624, 628 (6th Cir.2005) (quoting United States v. Turner, 490 F.Supp. 583, 593 (E.D.Mich.1979)). Under this type of challenge, the district judge may act as a “thirteenth juror,” assessing the credibility of witnesses and the weight of the evidence. United States v. Lutz, 154 F.3d 581, 589 (6th Cir.1998).

Thus, while Rule 29(c) and Rule 33(a) may deal with similar issues, the two rules are governed by different standards of review. When assessing a motion for judgment of acquittal, pursuant to Rule 29(c), a court is required to approach the evidence from a standpoint most favorable to the government, and to assume the truth of the evidence offered by the prosecution. With a Rule 33(a) motion for new trial on the ground that the verdict is against the weight of the evidence, the power of a court is much broader because a court may weigh the evidence and consider the credibility of the witnesses. See Turner, 490 F.Supp. at 593 (citing 2 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 553 (3d ed. 2004)).

Rule 33's “interest of justice” standard also “allows the grant of a new trial where substantial legal error has occurred.” Munoz, 605 F.3d at 373. This includes “any error of sufficient magnitude to require reversal on appeal.” Id. (quoting United States v. Wall, 389 F.3d 457, 474 (5th Cir.2004)). The trial court does not assume the role of the “thirteenth juror” for purposes of this type of challenge. Id. at 373 n. 9. Because defendant Dimora relies on both the “against the weight of the evidence” and the “substantial legal error” theories in his motion for a new trial, the Court shall apply the standard applicable to each type of argument advanced.

III. DiscussionA. Dimora's Motion for a Judgment of Acquittal

At the conclusion of the government's case, both defendants moved for a judgment of acquittal, and the Court denied these motions for reasons stated on the record. Dimora's present Rule 29 motion is a renewal of his previous motion, and the Court incorporates by reference its prior findings and conclusions set forth on the record. Additionally, to the extent that Dimora's motion attempts to incorporate the arguments made by co-defendant Gabor in support of his motion for judgment of acquittal, the Court incorporates its ruling on Gabor's post-trial motion.² ( See Doc. No. 923.)

The Court finds it necessary, however, to write separately on one issue previously raised by defendant Dimora. In a pretrial motion (Doc. No. 414.), Dimora sought the dismissal of seven of the counts against him charging conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951, on the ground that these counts were brought in violation of the Sixth Circuit's decision in United States v. Brock, 501 F.3d 762 (6th Cir.2007). In an opinion issued October 28, 2011, 829 F.Supp.2d 574 (N.D.Ohio 2011), the Court denied Dimora's motion to dismiss those counts, stating that a proper analysis of the Brock issue could not be conducted until after the presentation of evidence at trial. (Doc. No. 530 at 7–8, Page ID # 18785–86.)

In the October 28 opinion, the Court set forth a detailed analysis of the relevant holding in Brock as well as in United States v. Gray, 521 F.3d 514 (6th Cir.2008)—a case which discussed and applied Brock. It is unnecessary to embark on a second all-out explication of those cases here. But a brief summary of them and of this Court's previous conclusions as to the application of Brock and Gray is appropriate.

In Brock, the Sixth Circuit reversed two ...