United States v. Sittenfeld
| Decision Date | 01 March 2021 |
| Docket Number | Case No. 1:20–cr-142 |
| Citation | 522 F.Supp.3d 353 |
| Parties | UNITED STATES of America, Plaintiff, v. Alexander SITTENFELD, a/k/a "P.G. Sittenfeld", Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Emily N. Glatfelter, Matthew Charles Singer, Megan Gaffney, United States Attorney's Office, Cincinnati, OH, for Plaintiff.
Charles Matthew Rittgers, Charles Henry Rittgers, Rittgers & Rittgers, Lebanon, OH, Diane M. Menashe, Ice Miller LLP, Columbus, OH, Michael R. Dreeben, Pro Hac Vice, O'Melveny & Myers LLP, Washington, DC, Neal Darwin Schuett, Haughey & Niehaus, LLC, Oxford, OH, for Defendant.
The issue currently before the Court is not whether Alexander ("P.G.") Sittenfeld is innocent or guilty of the charges against him. Indeed, all agree that Sittenfeld is presumed innocent at this stage. Today's issue is narrower and more technical—namely, whether the Court should dismiss the Indictment (Doc. 3) against him on the grounds that it "fail[s] to state an offense." Fed. R. Crim. P. 12(b)(3)(B)(v). For the reasons below, the Court concludes that the Indictment does state an offense, and thus DENIES Sittenfeld's Amended Motion to Dismiss the Indictment (Doc. 25).1
At a 30,000-foot level, the facts alleged here involve a developer whose proposed project required Cincinnati City Council approval, but whose efforts to secure such approval had stalled for nearly two years. He then agreed to make (and get others to make) campaign contributions to a Council member, allegedly in exchange for help making those difficulties disappear. But before delving into the details, a word of caution: the allegations that follow in this section and throughout this Opinion and Order are just that—allegations. They are taken from the Indictment in this case, which contains only allegations—not evidence. The Court relies on those allegations here because the task before the Court is not to determine Sittenfeld's guilt or lack thereof, but rather to determine whether the Indictment, as alleged, is legally sufficient (i.e., states an offense or offenses). In undertaking that task, the Court must assume that the allegations in the Indictment are true, even though those allegations have not been (and might never be) proven true.
With that disclaimer, the Court now summarizes the facts alleged in the Indictment. The Indictment in this case outlines an undercover FBI operation spanning over a year. The sting unfolded in two phases. In the first phase, Sittenfeld allegedly agreed to "deliver" Cincinnati City Council votes for a real-estate-development project that had been awaiting City Council approval. (Indictment, Doc. 3, #32 ¶ 16). In the second phase, Sittenfeld allegedly agreed, again in exchange for campaign contributions, to facilitate legislative or regulatory changes that would enable legal sports betting at the development-project site, protected from competition. (Id. at #36 ¶ 31). This Opinion discusses each phase in turn.
"Project 1" is a real estate development project located in downtown Cincinnati. A person whom the Indictment calls only "Cooperating Witness 1" ("CW") had a financial interest in Project 1. He had been trying to develop the project since at least 2017. But, to do so, CW needed the Cincinnati City Council's formal approval.
In 2017, CW sent a letter to the City of Cincinnati requesting that the City enter a memorandum of understanding regarding the development of Project 1. When that didn't work, CW sought a development agreement with the City that would allow CW to develop Project 1. That didn't work either. Other efforts that CW undertook in 2017 and 2018 were likewise unavailing.
During this time, Alexander "P.G." Sittenfeld was an elected member of the Cincinnati City Council. On September 21, 2018, Sittenfeld contacted CW to request a $10,000 campaign donation in checks from multiple limited liability companies ("LLCs"). Sittenfeld was eager to receive the checks sooner rather than later because of an anticipated change in the law: before the November 6, 2018 general election, individuals were permitted to contribute $1,100 to Cincinnati candidates both individually and from as many LLCs as that individual owned. Issue 13 was placed on the ballot in 2018 in an effort to change that. It was a proposed Cincinnati Charter Amendment that would give individuals the choice of either giving up to $1,100 in campaign contributions individually or through an LLC, but not both or through multiple LLCs.
On or about October 26, 2018, less than two weeks before the 2018 election, CW spoke to Sittenfeld over the phone. CW informed Sittenfeld that Project 1 was "starting to heat up," to which Sittenfeld responded "good." (Indictment, Doc. 3, #29 ¶ 12).2 CW then said he knew two investors involved in Project 1 with access to capital and LLCs who could support Sittenfeld. But, unknown to Sittenfeld, these were not real investors. They were law enforcement agents posing as business partners of CW and financial supporters of Project 1. (The Indictment and this Opinion refer to these agent "investors" as UCE-1 and UCE-2.) Sittenfeld stated that he would love to meet with the Project 1 investors. Sittenfeld then mentioned that the law regarding LLCs was likely changing a week from next Tuesday, and that he would make himself available to meet with the investors before then. (Id. ).
A few days later, on or about October 30, 2018, CW told Sittenfeld that UCE-1 would not be able to meet with Sittenfeld until November 7 or 8 (after the election). CW wanted to know if Sittenfeld was available to meet on one of those dates instead. Sittenfeld replied, "one challenge is that is obviously after ... the deadline." (Id. at #29 ¶13). The "deadline" presumably referred to Election Day—the day that Issue 13 was expected to pass. Apparently understanding what Sittenfeld meant, CW offered to try to get others to support Sittenfeld financially.
Then CW raised Project 1. CW explained to Sittenfeld how another public official in Cincinnati was working against CW's efforts to strike a development deal with the City. (The Indictment and this Opinion refer to this other public official as "Public Official A.") Sittenfeld responded that he knew "a pretty good amount about it." (Id. at #30 ¶ 13). CW explained that because of this issue, he was trying to keep his name off the contributions. Sittenfeld responded that he had "obligations to do the things I needed to do [to] be a successful candidate," and that meant he wanted CW to support him financially. (Id. ). Sittenfeld continued:
But, I mean, the one thing I will say, is like, you know I mean, you don't want me to like, to be like, ‘hey [CW], like, love you, but can't,’ you know like; you know, look, I want, I want people to support me, that's like, if a candidate doesn't want people to support them, they're a shitty, dumb candidate. And, you know, I've been, obviously a lot of people have come through in a really big way and it's been awesome so far, and, I'd love, I'd love for you to be one of those people too.
(Id. ). CW responded, "[w]e'll make something happen," to which Sittenfeld asked, "[y]ou can do it before LLC thing?" (Id. ). (The Indictment doesn't say whether CW responded to this question.) Sittenfeld then listed several entities that had already contributed to him and said it would be "big" if CW could "round up five LLCs before next Tuesday." (Id. ). After agreeing to meet CW and the investor for lunch on November 7, 2018, Sittenfeld told CW, "and then you're gonna deliver the goods before next Tuesday." (Id. ).
On or about November 2, 2018, CW called Sittenfeld with some good news and some bad news. The bad: CW and UCE-1 would not be able to deliver the LLC checks before Election Day. The good: CW could get Sittenfeld $20,000 over the next few weeks, with $10,000 in the first week. But there was a caveat, explained CW: if the investors were going to pay Sittenfeld $10,000 by the next week,3 they would want to know that, for Project 1, it was "gonna be a yes vote, you know, without ... a doubt." (Id. at #30 ¶ 14). Sittenfeld allegedly responded:
you know, obviously nothing can be illegal like ... [legally]4 nothing can be a quid pro quo. And I know that's not what you're saying either. But what I can say is that I'm always super pro-development and revitalization of especially our urban core ... And we can, we, we, we can discuss that more in person. But I'm not, I'm not sure; in seven years I've voted in favor of every single development deal that's ever been put in front of me.
(Id. at #30–31 ¶ 14). Sittenfeld then discussed meeting with CW's investors, stating he would like five minutes to walk them through some of his "voting data" so they could appreciate his "starting point." (Id. at #31 ¶ 14). Sittenfeld continued: (Id. ).
The in-person meeting happened less than a week later. On or about November 7, 2018, Sittenfeld met CW and UCE-1 for lunch at a downtown Cincinnati restaurant. During the meeting, they discussed the type of development agreement that CW was looking for from the City for Project 1. Sittenfeld then said to UCE-1, "you like making good bets and good investments," and proceeded to present UCE-1 his voting data. (Id. at #31 ¶ 15). The data showed that he was politically popular throughout Cincinnati and that he was likely to be the next mayor. Sittenfeld told UCE-1 that every successful developer and business leader in Cincinnati had "already placed their bet" with him. (Id. ). UCE-1 reiterated his interest in making Project 1 "veto proof," and Sittenfeld replied, "I can move more votes than any single other person,...
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