United States v. James C. Dimora (12-4004) & Michael Gabor (12-4051)

• Decision Date: 05 June 2014
• Docket Number: 12–4051.,Nos. 12–4004,s. 12–4004
• Citation: 750 F.3d 619
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James C. DIMORA (12–4004) and Michael Gabor (12–4051); Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

750 F.3d 619

UNITED STATES of America, Plaintiff–Appellee,

v.James C. DIMORA (12–4004) and Michael Gabor (12–4051); Defendants–Appellants.

Nos. 12–4004, 12–4051.

United States Court of Appeals, Sixth Circuit.

Argued: March 12, 2014.

Decided and Filed: April 30, 2014.

Rehearing En Banc Denied June 5, 2014.^*

ARGUED:Christian J. Grostic, Kushner & Hamed Co., L.P.A., Cleveland, Ohio, for Appellant in 12–4004. David G. Oakley, Cleveland, Ohio, for Appellant in 12–4051. Antoinette T. Bacon, United States Attorney's Office, Cleveland, Ohio, for Appellee. ON BRIEF:Christian J. Grostic, Kushner & Hamed CO., L.P.A., Cleveland, Ohio, for Appellant in 12–4004. Leif B. Christman, Cleveland, Ohio, for Appellant in 12–4051. Antoinette T. Bacon, Laura McMullen Ford, Ann C. Rowland, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: MERRITT, SUTTON and GRIFFIN, Circuit Judges.

SUTTON, J., delivered the opinion of the court in which GRIFFIN, J., joined, and MERRITT, J., joined except for Part V-i. MERRITT, J. (pp. 632–33), delivered a separate dissenting opinion as to that part.

OPINION

SUTTON, Circuit Judge.

In the aggregate, a jury convicted two Cuyahoga County officials, James Dimora and Michael Gabor, of 39 violations of federal anti-corruption laws stemming from their participation in a slate of bribery and fraud schemes involving various Cleveland-area favor-seekers. Expensive trips to Las Vegas in exchange for county patronage, thousands of dollars in cash in exchange for government jobs, extensive home improvements to the tune of $30,000 in exchange for public construction contracts—these and other this-for-that arrangements were more than kindly gestures, more than mere “pleases” and “thank yous,” among friends. The jury instead found, after a 37–day trial, that the evidence showed Dimora and Gabor participated in a host of corrupt bargains and arrangements prohibited by federal law. We affirm their convictions and sentences.

I.

From 1998 to 2010, Dimora was one of three elected commissioners for Cuyahoga County. Three commissioners historically have led the government of the county, though that changed (perhaps due to the charges in this and related cases) when the people of Cuyahoga County voted for a county executive form of government that started in 2011. Gabor occupied a less prominent position in the county's government. From 2005 to 2010, he worked for the county's weights-and-measures office, which inspects gas pumps, grocery store scanners, truck scales and the like for accuracy.

In 2007, the FBI launched an investigation of public corruption in Cuyahoga County. Through thousands of wiretaps and other means, the investigation revealed that Dimora's tenure as 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. A few examples illustrate the pattern. A contractor named Ferris Kleem testified that he funded a trip to Las Vegas for Dimora, covering the costs of gambling chips, luxury hotel suites and a $2,219 dinner. In exchange, Kleem got “influence at Cuyahoga County and ... protection for [his] businesses.” R. 1014 at 41. “I ... expected that [Dimora] would do me favors,” Kleem testified, “and he always did.” Id. at 78. Charles Randazzo, a retirement plan salesman, testified that he won Cuyahoga County's business after giving Dimora a $1,079 cashier's check, which Dimora used to buy a tiki hut for his backyard. As Frank Russo, the County Auditor who pleaded guilty to several counts of public corruption covering the same time period, described the relationship, “[Randazzo] did a lot for [Dimora] and [me], and he expect[ed] a lot from us.” R. 1039 at 173. The gifts did not stop at Vegas vacations and tiki huts. The government introduced a phone call between Dimora and Rob Rybak, a plumbers' union representative, who said that he would cover the cost of a prostitute for Dimora if the county hired more plumbers. “[W]e'll handle it,” Dimora told Rybak, and he did. R. 1020 at 180. And in return for jobs for family and friends, Nicholas Zavarella performed more than $30,000 of home improvement work on Dimora's house free of charge.

While Gabor did not wield Dimora's authority or receive as many meals, gifts, trips and home improvements, he was not afraid to use his influence in similar ways for similar reasons. He started on the wrong foot by buying his job from Russo for $5,000. After that start, Gabor was an auditor in name only. He spent most of his time running errands for Dimora that had nothing to do with the customary requirements of the job. Among other things, he was a go-between in arranging kickback schemes on county projects. And when Gabor learned that the FBI was investigating him, he warned his co-conspirators about the investigation and tried to convince them to lie about what they were up to.

After a 37–day trial recounting these and many other comparable acts and featuring Russo as a lead witness, a jury convicted Dimora and Gabor of various federal crimes, including conspiracy, bribery, fraud and obstruction of justice. The district court sentenced Dimora to 336 months in prison and Gabor to 121 months.

II.

Gabor and Dimora challenge the jury instructions on several grounds. Gabor first attacks the unanimity instruction on the RICO charge. The statute makes it unlawful to conspire to participate in the affairs of an enterprise through a “pattern of racketeering activity.” 18 U.S.C. § 1962(c), (d). The court instructed the jury that to convict Gabor on the charge it “must be unanimous as to which type or types of predicate racketeering activity [he] agreed would be committed.” R. 1044 at 145–46. Gabor claims the court should have said more, requiring unanimity about which acts the conspirators agreed to commit, not which types of acts they agreed to commit. Even if Gabor were entitled to this additional instruction, a point we need not decide, any confusion on this score is of his own making. The district court offered to give a special verdict form, which would have asked the jurors to indicate which alleged acts contributed to their conspiracy conviction. Gabor rejected the offer, insisting that the court ask the jury for a general verdict on the RICO charge. Having invited this general verdict, Gabor cannot complain about the (alleged) lack of detail it now provides. United States v. Sharpe, 996 F.2d 125, 129 (6th Cir.1993).

Gabor and Dimora both claim that the court failed to instruct the jury sufficiently on the difference between gifts given in friendship and bribes given in exchange for official acts. No error occurred. The jurors heard that “effort[s] to buy favor or generalized goodwill” do not necessarily amount to bribery, that official acts may come in the guise of formal and informal influence, and that gifts exchanged solely to cultivate friendship are not bribes. R. 1044 at 48–51. On the other side of the coin, the jurors heard that bribery and kickbacks involve “the intent to ... exchange ... money or other thing[s] of value in return for official action.” Id. at 49. These instructions fairly trace the line between permissible gifts and impermissible bribes. See United States v. Terry, 707 F.3d 607, 612–14 (6th Cir.2013).

The defendants notably do not claim that these instructions misdescribe the line. They instead argue that the district court should have given additional instructions to clarify the distinction still further. They asked for an instruction that “[p]ayments for entertainment, lodging, [and] travel ... are not bribes if the aim of the giver is to cultivate ... ‘friendship’ with the public official.” R. 665 at 2. And they asked for an instruction that “[t]he generalized hope or expectation of ultimate benefit on the part of the giver does not constitute a bribe.” Id. But the jury already knew that property given in friendship and without expectation does not amount to a bribe, and the jury already heard that bribery does not include gifts given in the hope that “at some unknown, unspecified time, [a public official might] act favorably in the giver's interests,” R. 1044 at 48–49. Choosing different words to explain the same concept does not amount to an abuse of discretion. United States v. Jones, 647 F.2d 696, 700 (6th Cir.1981).

III.

The jury convicted Dimora of 32 separate counts of bribery, fraud, obstruction of justice and other crimes. He challenges the sufficiency of the evidence concerning four of those counts, involving two Hobbs Act bribery schemes (one involving Nicholas Zavarella, a masonry contractor, the other involving John Valentin, the owner of a granite shop) and one fraud scheme (involving Gina Coppers). As for the rest, Dimora says nothing with respect to the sufficiency of the evidence to convict him. We may overturn the jury's verdict on these four counts only if, after “viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 310, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

To convict Dimora under the Hobbs Act, the government needed to show that Dimora “obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” Evans v. United States, 504 U.S. 255, 268, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992). The jury thus had to find that individuals gave Dimora things of value in connection with an “agreement” to take official actions. Id.; see also Terry, 707 F.3d at 613. The jury heard plenty of evidence to convict Dimora on this score—from Dimora's co-conspirators and from the bribers themselves.

Start with the testimony of Russo, the county auditor and a confessed kingpin...