In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

JAMES C. DIMORA,Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Christian J. Grostic Counsel of RecordKUSHNER & HAMED CO., LPA1375 East Ninth St., Ste 1930Cleveland, OH 44114(216) 696-6700cgrostic@khlpa.com

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO.

i

QUESTION PRESENTED

Whether the majority below erred in deciding thata nonconstitutional error in a criminal case washarmless by applying the Sixth and Ninth Circuits’“more probable than not” standard, in conflict withKotteakos v. United States, 328 U.S. 750 (1946), and theother federal circuit courts of appeals.

ii

PARTIES TO THE PROCEEDING

Petitioner was a defendant in the district court. Co-defendant Michael D. Gabor’s appeal was consolidatedwith Petitioner’s appeal in the Sixth Circuit, but Mr.Gabor is not a party before this Court.

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISION AND RULEINVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THE WRIT . . . . . . . . 9

I. The Circuits Are Divided on the ProperStandard for Determining Whether aNonconstitutional Error in a Criminal CaseIs Harmless. . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Most Circuits Apply the KotteakosStandards But Differ Significantly inTheir Formulations. . . . . . . . . . . . . . . . . . 9

B. In Conflict with the Other Circuits, theMajority Below Applied the Sixthand Ninth Circuits’ Harmless-ErrorStandard. . . . . . . . . . . . . . . . . . . . . . . . . . 13

II. The Sixth and Ninth Circuits’ StandardViolates the Principles of Kotteakos. . . . . . . 14

iv

III. This Case Presents an Ideal Vehicle forResolving an Important and Recurring Issueof Federal Law. . . . . . . . . . . . . . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

APPENDIX

Appendix A Opinion and Judgment in the UnitedStates Court of Appeals for the SixthCircuit(April 30, 2014) . . . . . . . . . . . . . . App. 1

Appendix B Judgment in a Criminal Case in theUnited States District Court for theNorthern District of Ohio(August 1, 2012) . . . . . . . . . . . . . App. 27

v

TABLE OF AUTHORITIES

CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . 16

Kotteakos v. United States, 328 U.S. 750 (1946) . . . . . . . . . . . . . . . . . . passim

Sullivan v. Louisiana, 508 U.S. 275 (1993) . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Carrillo, 660 F.3d 914 (5th Cir. 2011) . . . . . . . . . . . . . . . 11

United States v. Crosby, 75 F.3d 1343 (9th Cir. 1996) . . . . . . . . . . . . . . . 13

United States v. Davis, 577 F.3d 660 (6th Cir. 2009) . . . . . . . . . . . . . 8, 13

United States v. DeAngelo, 13 F.3d 1228 (8th Cir. 1994) . . . . . . . . . . . . . . . 12

United States v. Dominguez-Benitez, 542 U.S. 74 (2004) . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Ganim, 510 F.3d 134 (2d Cir. 2007) . . . . . . . . . . . . . . . . . 3

United States v. Gupta, 747 F.3d 111 (2d Cir. 2014) . . . . . . . . . . . . . . . . 11

United States v. Hands, 184 F.3d 1322 (11th Cir. 1999) . . . . . . . . . . . . . 11

United States v. Hernandez-Bermudez, 857 F.2d 50 (1st Cir. 1988) . . . . . . . . . . . . . . . . 10

vi

United States v. Hitt, 981 F.2d 422 (9th Cir. 1992) . . . . . . . . . . . . . 3, 13

United States v. Jarrett, 133 F.3d 519 (7th Cir. 1998) . . . . . . . . . . . . . . . 11

United States v. Johnson, 617 F.3d 286 (4th Cir. 2010) . . . . . . . . . . . . . . . 11

United States v. Lane, 474 U.S. 438 (1986) . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Lee, 612 F.3d 170 (3d Cir. 2010) . . . . . . . . . . . . . . . . 10

United States v. Morales, 108 F.3d 1031 (9th Cir. 1997) . . . . . . . . . . . . . . 13

United States v. Neuroth, 809 F.2d 339 (6th Cir. 1987) . . . . . . . . . . . . 13, 14

United States v. Pineda, 592 F.3d 199 (D.C. Cir. 2010) . . . . . . . . . . . . . . 13

United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981) . . . . . . . . . . . . . . . 14

United States v. Rivera, 900 F.2d 1462 (10th Cir. 1990) . . . . . . . . . . . . . 11

United States v. Robinson, 724 F.3d 878 (7th Cir. 2013) . . . . . . . . . . . . . . . 11

United States v. Wen Chyu Liu, 716 F.3d 159 (5th Cir. 2013) . . . . . . . . . . . . . . . 11

United States v. Worman, 622 F.3d 969 (8th Cir. 2010) . . . . . . . . . . . . . . . 12

vii

Weiler v. United States, 323 U.S. 606 (1945) . . . . . . . . . . . . . . . . . . . . . . 15

STATUTES AND RULES

28 U.S.C. § 391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 2111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

FED. R. CRIM. P. 52(a) . . . . . . . . . . . . . . . . . . . . . 1, 13

FED. R. EVID. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

OTHER AUTHORITIES

John H. Blume & Stephen P. Garvey, HarmlessError in Federal Habeas Corpus After Brechtv. Abrahamson, 35 WM. & MARY L. REV. 163(1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10

Harry T. Edwards, To Err Is Human, ButNot Always Harmless: When Should LegalError Be Tolerated?, 70 N.Y.U. L. REV. 1167(1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Stephen A. Saltzburg, The Harm of Harmless Error,59 VA. L. REV. 988 (1973) . . . . . . . . . . . . . . . . . . 10

ROGER J. TRAYNOR, THE RIDDLE OF HARMLESSERROR (1970) . . . . . . . . . . . . . . . . . . . . . . . . 16, 19

1

PETITION FOR A WRIT OF CERTIORARI

James C. Dimora respectfully petitions for a writ ofcertiorari to review the judgment of the United StatesCourt of Appeals for the Sixth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appealsfor the Sixth Circuit is reported at 750 F.3d 619 andreproduced in the Appendix at 1-25.

JURISDICTION

The judgment of the court of appeals was entered onApril 30, 2014. This Court’s jurisdiction is invokedunder 28 U.S.C. § 1254(1).

STATUTORY PROVISIONAND RULE INVOLVED

Section 2111 of Title 28 of the United States Codeprovides:

On the hearing of any appeal or writ of certiorariin any case, the court shall give judgment afteran examination of the record without regard toerrors or defects which do not affect thesubstantial rights of the parties.

28 U.S.C. § 2111.

Federal Rule of Criminal Procedure 52(a) provides:

Harmless Error. Any error, defect, irregularity,or variance that does not affect substantialrights must be disregarded.

FED. R. CRIM. P. 52(a).

2

INTRODUCTION

This case presents a basic and important questionof federal criminal law over which the lower courts aredivided: the standard for determining whether anonconstitutional error at trial is harmless.

In Kotteakos v. United States, 328 U.S. 750 (1946),this Court set forth how the courts of appeals shouldapply the harmless-error statute to determineharmlessness.1 In the 68 years since, the lower courtshave diverged sharply in their interpretation andapplication of Kotteakos, including in the majority anddissenting opinions below, and including between andwithin the circuits. See John H. Blume & Stephen P.Garvey, Harmless Error in Federal Habeas CorpusAfter Brecht v. Abrahamson, 35 WM. & MARY L. REV.163, 171 (1993) (“A body of case law has indeeddeveloped around Kotteakos, but the guidance it offersis less than clear. While there appears to be generalagreement that the state must show some probabilitythat the error was harmless, there is disagreementregarding how strong that probability must be.”).

Even in the context of that divergence, the relaxed“more probable than not” standard adopted by theSixth and Ninth Circuits, and applied by the majority

1 The Kotteakos Court applied the former harmless-error statute,28 U.S.C. § 391, which is identical in all relevant respects to thecurrent statute and rule. See 28 U.S.C. § 391 (repealed 1948) (“Onthe hearing of any appeal, certiorari, writ of error, or motion for anew trial, in any case, civil or criminal, the court shall givejudgment after an examination of the entire record before thecourt, without regard to technical errors, defects, or exceptionswhich do not affect the substantial rights of the parties.”).

3

below, is an outlier. It conflicts directly withKotteakos—as the Ninth Circuit itself once recognized,see United States v. Hitt, 981 F.2d 422, 425 & n.2 (9thCir. 1992)—and invites the very dangers that theKotteakos Court sought to prevent.

This case presents an ideal vehicle for resolving thisimportant and recurring issue. The court belowunanimously concluded that the trial court erred byexcluding evidence that Petitioner had highlighted inhis opening statement as central to his defense. Themajority applied the “more probable than not” standardand concluded that the error was harmless. The dissentapplied the Kotteakos standard and concluded that theerror was not harmless. Their competing analysesdemonstrate the dangers invited by the “more probablethan not” standard. This Court’s review is warranted.

STATEMENT OF THE CASE

1. District Court Proceedings. Former CuyahogaCounty Commissioner James Dimora was charged with34 counts of bribery and bribery-related offenses. Withfew exceptions, Dimora did not dispute that he receivedthe things of value or took the actions that thegovernment alleged. The primary issue in dispute attrial was his intent: whether he solicited or acceptedthe things of value knowing they were given inexchange for official acts. See United States v. Ganim,510 F.3d 134, 141-42 (2d Cir. 2007) (Sotomayor, J.)(explaining the quid pro quo requirements of thefederal bribery statutes). The government asked thejury to infer criminal intent by introducing evidencethat Dimora concealed receiving things of value fromthe alleged bribers.

4

Before trial, the government moved in limine toexclude evidence that Dimora publicly disclosed on hisstate ethics reports that he received things of valuefrom the alleged bribers. Dimora argued that his ethicsreports were “wholly probative and relevant to intent.Just as the Government will argue that any attempt toconceal things of value from the alleged co-conspiratorsis evidence of criminal intent, Mr. Dimora should beable to argue that the disclosure of things of value isrelevant to refuting intent.” R. 629, Resp. at 3.2 Thedistrict court ruled that Dimora could introduce hisethics reports to establish lack of criminal intent, butonly during the defense case and not throughgovernment witnesses.

In opening statement, the government asserted thatDimora and his co-conspirators developed a “conspiracyhandbook” with an “unwritten set of rules” to enrichthemselves; rule three was to deal only “with peoplewho will keep the secret,” R. 1010, Tr. Vol. 4 at 925,and “cover your tracks,” thereby keeping their “darkand secret world . . . shut and locked and bolted,” id. at927-28.

Relying on the court’s in limine ruling, Dimorapromised the jury in opening statement that his ethicsreports would refute the government’s accusations ofconcealment. He framed his defense around thatquestion:

And most importantly, these are people thatCommissioner Dimora, people that gave him

2 “R.” indicates the record entry number on the district court’sdocket in this case, case number 1:10-cr-387 (N.D. Ohio).

5

gifts, people that bought him dinner, these arepeople that Commissioner Dimora put on hisstate ethics reports.

And you will see, ladies and gentlemen, andthe evidence will show that there was noattempt to hide this. These reports, these stateethics reports, are required to be filed by allpublic officials. There is a place on those reportsto list who is giving you a gift over a certainamount and who has bought you a meal.

Jimmy Dimora filled out those reports. Hefiled them with the state. Those are publiclyavailable reports so that people can monitor, theGovernment, the citizens, can monitor who isgiving gifts to public officials. . . .

. . . .

He didn’t cover it up. He didn’t hide it. Andyou may disagree with a public official beingable to get a gift from somebody that does workwith the county. You may disagree with a publicofficial being able to be bought dinner bysomebody who is a friend and a businessmanand a contractor. But it’s not illegal.

. . . .

The FBI didn’t need permission to go intothis dark room to find out who Jimmy Dimorahad relationships with. The FBI didn’t need ajudge to open the door to a world that washidden. The FBI just had to go online and lookat Commissioner Dimora’s ethics reports. There

6

was everybody that bought him dinner,everybody that gave him things of value.

They didn’t need to do wiretaps. They didn’tneed to learn these things through thesemanners because it wasn’t hidden. There wasn’ta closed door on the world of Jimmy Dimora.

Id. at 1005-07.

During trial, the government repeatedly elicitedtestimony—at least sixty times, through twentydifferent witnesses—that Dimora did not disclose thathe received things of value from alleged bribers.3

Dimora objected, and the government argued thatDimora’s alleged failure to disclose established that hehad criminal intent. See, e.g., R. 1020, Tr. Vol. 13 at3459 (“[S]ecrecy is very relevant evidence of intent in abribery case.”). Observing the government’spresentation of this evidence amongst all the otherevidence in the case, the court noted that it was“important I understand [to] the government’s case tobe able to indicate there wasn’t any disclosure.”R. 1021, Tr. Vol. 14 at 3614.

But when Dimora sought to prove that he hadpublicly disclosed receiving things of value from thealleged bribers on his official state ethics reports, as hehad told the jury in opening, the government objectedon the basis of hearsay. Dimora argued that his ethicsreports were not being offered for the truth of thematters asserted—that he was not seeking to establish

3 Dimora included a list of sixty government questions regardingalleged failures to disclose at pages 57-63 of his opening brief onappeal.

7

that he actually received things of value from thealleged bribers, which the government had alreadyestablished—but instead were being offered to showthat “he disclosed them in a venue that was accessibleto the entire public. . . . What we’re talking about is thedisclosure.” R. 1029, Tr. Vol. 31 at 7374-75. The districtcourt sustained the government’s objection andexcluded the reports as inadmissible hearsay.4

In closing argument, the government repeatedlyencouraged the jury to infer criminal intent from itsunrefuted evidence that Dimora had concealedreceiving things of value from the alleged bribers. Thegovernment argued that his receipt of things of valueneeded to be concealed if they were bribes. See, e.g., R.1046, Tr. Vol. 37 at 8328 (“But people who are takingbribes, accepting bribes, selling, cashing in the powerof their public offices, those people need to keep that asecret.”).

Dimora was convicted on 33 counts and acquitted onone. The district court entered a judgment of acquittalon one other count, and denied Dimora’s motions forjudgment of acquittal or a new trial on the other 32counts.

2. Appeal. Dimora appealed, arguing, inter alia,that the district court erred by excluding his ethicsreports and that the error was not harmless under theKotteakos standard. The majority and dissent agreedthat the trial court erred in excluding Dimora’s ethics

4 Following trial, the district court, acting sua sponte, held that theethics reports were also inadmissible under Federal Rule ofEvidence 403, although neither party ever raised Rule 403.

8

reports as inadmissible hearsay. Pet. App. 13, 22. Theydisagreed on whether the error was harmless.

The majority stated that “we will not reverse unless. . . ‘it is more probable than not that the errormaterially affected the verdict,’” id. at 14 (quotingUnited States v. Davis, 577 F.3d 660, 670 (6th Cir.2009)), and, applying that standard, concluded that theerror was harmless. The majority found that thegovernment’s evidence was overwhelming, a point itsaid was “confirm[ed]” by the fact that “Dimora himselfdoes not even independently challenge the sufficiencyof the evidence on 28 of the 32 counts of conviction.” Id.It further found that the ethics reports—which Dimorahighlighted in his opening statement, and which thegovernment repeatedly attempted to exclude—actuallywould have been harmful to him. Id. at 15-16.

The dissent explained the importance of disclosuresin determining a public official’s intent in a briberyprosecution. Id. at 23. It noted the emphasis placed byDimora, the government, and the district court onDimora’s disclosures (or lack thereof), including to thejury, and noted that the district court’s error“improperly prevented Dimora from following throughon his promise to show the jury the fact that hedisclosed to the public gifts from a number of the‘payors.’” Id. at 24. Quoting Kotteakos, 328 U.S. at 764,the dissent stated that “we must lean on harmlesserror only if we are ‘sure the error did not influence thejury, or had but very slight effect,’” id. at 25, and,applying that standard, concluded that the error wasnot harmless.

9

REASONS FOR GRANTING THE WRIT

I. The Circuits Are Divided on the ProperStandard for Determining Whether aNonconstitutional Error in a Criminal CaseIs Harmless.

The lower courts have diverged sharply in theirinterpretation and application of the harmless-errorstandards set forth in Kotteakos v. United States.Although most courts have attempted to remainfaithful to Kotteakos, they have differed on the properformulation of the harmless-error standard and on thedegree of probability necessary to establishharmlessness. Even in the context of that divergence,the “more probable than not” standard adopted by theSixth and Ninth Circuits, and applied by the majoritybelow, is an outlier.

A. Most Circuits Apply the KotteakosStandards But Differ Significantly inTheir Formulations.

In Kotteakos, this Court held:

If, when all is said and done, the conviction issure that the error did not influence the jury, orhad but very slight effect, the verdict and thejudgment should stand, except perhaps wherethe departure is from a constitutional norm or aspecific command of Congress. But if one cannotsay, with fair assurance, after pondering all thathappened without stripping the erroneous actionfrom the whole, that the judgment was notsubstantially swayed by the error, it isimpossible to conclude that substantial rightswere not affected. The inquiry cannot be merely

10

whether there was enough to support the result,apart from the phase affected by the error. It israther, even so, whether the error itself hadsubstantial influence. If so, or if one is left ingrave doubt, the conviction cannot stand.

328 U.S. at 764-65 (internal citation and footnoteomitted). The Kotteakos Court made clear that whether“conviction would, or might probably, have resulted ina properly conducted trial is not the criterion,” andreversed the judgment, concluding: “We think it highlyprobable that the error had substantial and injuriouseffect or influence in determining the jury’s verdict.” Id.at 776.

The dissent below applied the standards set forth inKotteakos. The majority of the circuits—all except theSixth and Ninth Circuits—have typically done thesame. Between and within those circuits, however,courts have differed significantly in their interpretationand application of Kotteakos. See Blume & Garvey,supra, at 171 (“A body of case law has indeed developedaround Kotteakos, but the guidance it offers is less thanclear.”); Stephen A. Saltzburg, The Harm of HarmlessError, 59 VA. L. REV. 988, 1009 (1973) (“Although thejudiciary may profess to act in reliance upon Kotteakos,the test laid down in that case is unevenly applied.”).

Some courts have attempted to cast the harmless-error standard in terms of probability. The First andThird Circuits have held that a judgment of convictionshould be reversed unless it is “highly probable” thatthe error did not contribute to the judgment. SeeUnited States v. Lee, 612 F.3d 170, 189 (3d Cir. 2010);United States v. Hernandez-Bermudez, 857 F.2d 50, 53(1st Cir. 1988). The Eleventh Circuit has applied a less

11

defendant-friendly “reasonable likelihood” standard.See United States v. Hands, 184 F.3d 1322, 1329 (11thCir. 1999). And the Fifth Circuit has adopted the mostdefendant-friendly standard, requiring that thegovernment “establish[] harmlessness beyond areasonable doubt.” United States v. Carrillo, 660 F.3d914, 927 (5th Cir. 2011) (internal quotation marksomitted); see also United States v. Wen Chyu Liu, 716F.3d 159, 169 (5th Cir. 2013) (“[T]he necessary inquiryis whether the trier of fact would have found thedefendant guilty beyond a reasonable doubt with theadditional evidence inserted.”) (internal quotationmarks omitted).

Other courts have avoided stating the standard interms of probability, yet still disagree on theappropriate formulation. Some have relied primarily onthe statement in Kotteakos that a judgment should bereversed “if one cannot say, with fair assurance . . .that the judgment was not substantially swayed by theerror.” 328 U.S. at 765; see, e.g., United States v. Gupta,747 F.3d 111, 133 (2d Cir. 2014); United States v.Robinson, 724 F.3d 878, 888 (7th Cir. 2013); UnitedStates v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010).Others have used the “substantial and injurious effect”standard found elsewhere in Kotteakos. 328 U.S. at776; see, e.g., United States v. Jarrett, 133 F.3d 519,529 (7th Cir. 1998). The Tenth Circuit has relied onstill other formulations in Kotteakos to hold that “[a]non-constitutional error is harmless unless it had a‘substantial influence’ on the outcome or leaves one in‘grave doubt’ as to whether it had such effect.” UnitedStates v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)(en banc) (quoting Kotteakos, 328 U.S. at 765). And theEighth Circuit has paraphrased and combined different

12

formulations to hold that an error is harmless “if thesubstantial rights of the defendant were unaffected,and the error had no, or only a slight, influence on theverdict,” United States v. Worman, 622 F.3d 969, 976(8th Cir. 2010), or “[s]tated another way, only if thejury may have been substantially swayed by [the error]must we reverse the conviction,” United States v.DeAngelo, 13 F.3d 1228, 1233 (8th Cir. 1994) (internalquotation marks omitted).

The D.C. Circuit has recognized that, like the courtsof appeals collectively, it has expressed the harmless-error standard in inconsistent ways:

In some cases, including this one, we haveseemingly asked whether it is “highly probable”an error had a “substantial and injurious effector influence in determining the jury’s verdict.”See, e.g., United States v. Harris, 491 F.3d 440,452, 377 U.S. App. D.C. 49 (2007). In othercases, we have articulated a less demandingstandard for deeming an error harmless. See,e.g., United States v. Bailey, 319 F.3d 514, 519,355 U.S. App. D.C. 64 (2003) (“fair assurance . . .that the judgment was not substantially swayedby the error”); United States v. Lampkin, 159F.3d 607, 613, 333 U.S. App. D.C. 17 (1998) (no“real possibility that the [error] had asubstantial effect on the jury’s verdict”). In stillother cases we have seemingly dispensed withthe concept of probability, asking only whetheran error had “a substantial and injurious effector influence in determining the jury’s verdict.”See, e.g., United States v. Bentley, 489 F.3d 360,363, 376 U.S. App. D.C. 352 (2007).

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United States v. Pineda, 592 F.3d 199, 200 (D.C. Cir.2010) (alteration in Pineda). Like the conflict betweenthe circuits, the D.C. Circuit’s intracircuit conflictremains unresolved. Id.

B. In Conflict with the Other Circuits, theMajority Below Applied the Sixth andNinth Circuits’ Harmless-ErrorStandard.

The majority below followed the rule adopted by theSixth and Ninth Circuits:

If a district court incorrectly excludes evidence,we will not reverse unless the error affected thedefendant’s “substantial rights,” Fed. R. Crim. P.52(a), asking whether “it is more probable thannot that the error materially affected theverdict,” United States v. Davis, 577 F.3d 660,670 (6th Cir. 2009).

Pet. App. 14; see United States v. Morales, 108 F.3d1031, 1040 (9th Cir. 1997) (en banc); United States v.Neuroth, 809 F.2d 339, 342 (6th Cir. 1987) (en banc).

The relaxed “more probable than not” standard isnot based on Kotteakos or the harmless-error statuteand is an outlier amongst the circuits. In fact, theNinth Circuit once recognized that the “more probablethan not” standard conflicted with the “fair assurance”standard found in Kotteakos. See United States v. Hitt,981 F.2d 422, 425 & n.2 (9th Cir. 1992). In a later case,however, the Ninth Circuit held that the two standardsare the same, see United States v. Crosby, 75 F.3d 1343,1349 (9th Cir. 1996), a conclusion subsequentlyendorsed by the en banc court, see Morales, 108 F.3d at1040 (“We must reverse unless there is a ‘fair

14

assurance’ of harmlessness, or, stated otherwise, unlessit is more probable than not that the error did notmaterially affect the verdict.”). The en banc SixthCircuit adopted the “more probable than not” standardfrom the Ninth. See Neuroth, 809 F.2d at 342 (citingUnited States v. Rasheed, 663 F.2d 843, 850 (9th Cir.1981)).

II. The Sixth and Ninth Circuits’ StandardViolates the Principles of Kotteakos.

The Kotteakos Court properly interpreted theharmless-error statute in the context of the SixthAmendment jury-trial right. In deciding whether a trialerror is harmless, a court of appeals should focus onwhether the error may have affected the jury’sdeliberations and decision. Cf. Sullivan v. Louisiana,508 U.S. 275, 279 (1993) (“The inquiry . . . is notwhether, in a trial that occurred without the error, aguilty verdict would surely have been rendered, butwhether the guilty verdict actually rendered in thistrial was surely unattributable to the error.”). Thelower courts’ varying interpretations of Kotteakos havenot always held true to this principle.

The Sixth and Ninth Circuits’ “more probable thannot” standard, applied by the majority below, is themost extreme departure. It directly conflicts withKotteakos. See Kotteakos, 328 U.S. at 776 (“Thatconviction would, or might probably, have resulted ina properly conducted trial is not the criterion of [theharmless-error statute].”); see also United States v.Dominguez-Benitez, 542 U.S. 74, 86 (2004) (Scalia, J.,concurring) (stating that the Kotteakos standard ismore defendant-friendly than both the “reasonable

15

probability” standard and the “more likely than not”standard).

Moreover, it invites the very dangers that theKotteakos Court sought to prevent. First, the Courtwarned that “it is not the appellate court’s function todetermine guilt or innocence. Nor is it to speculateupon probable reconviction and decide according to howthe speculation comes out.” Kotteakos, 328 at 763; seealso Weiler v. United States, 323 U.S. 606, 611 (1945)(“We are not authorized to look at the printed record,resolve conflicting evidence, and reach the conclusionthat the error was harmless because we think thedefendant was guilty. That would be to substitute ourjudgment for that of the jury and, under our system ofjustice, juries alone have been entrusted with thatresponsibility.”).

But the “more probable than not” standard invitesjudges to “conflate the harmlessness inquiry with[their] own assessment of a defendant’s guilt. Thisapproach is dangerously seductive, for our naturalinclination is to view an error as harmless whenever adefendant’s conviction appears well justified by therecord evidence.” Harry T. Edwards, To Err Is Human,But Not Always Harmless: When Should Legal ErrorBe Tolerated?, 70 N.Y.U. L. REV. 1167, 1170 (1995). Atits most extreme, this inclination can lead judges tofocus on only the amount of evidence in support of theverdict and ignore weaknesses, limitations, or contraryevidence:

All too often an appellate court confuses reviewby applying the substantial evidence test todetermine whether an error is harmless. Such acourt considers only the evidence in support of

16

the judgment and ignores erroneous matter. Itassumes that the trier of fact, having decidedagainst the appellant, believed all properlyadmitted evidence against him and disbelievedall evidence in his favor.

ROGER J. TRAYNOR, THE RIDDLE OF HARMLESS ERROR28 (1970).

Second, the Kotteakos Court warned judges againstresolving competing interpretations and inferences andpresuming that the jury would view the evidence thesame way. Instead, “one must judge others’ reactionsnot by his own, but with allowance for how othersmight react and not be regarded generally as actingwithout reason.” Kotteakos, 328 U.S. at 763; cf.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51(1986) (“If reasonable minds could differ as to theimport of the evidence, however, a verdict should not bedirected.”). This is especially important where, as here,the reviewing court must consider the effect of evidencethat was excluded from trial and thus never presentedto the jury.

But the “more probable than not” standard makesno allowance for how reasonable minds might disagree.It asks the court to decide on its own whichinterpretation a jury would be more likely to adopt, aninquiry that intrudes on the jury-trial right and forwhich a court of appeals is ill-equipped. See Edwards,supra, at 1193-94.

17

III. This Case Presents an Ideal Vehicle forResolving an Important and RecurringIssue of Federal Law.

The majority and dissent below agreed that thedistrict court erred by excluding Dimora’s ethicsreports as inadmissible hearsay. They disagreed onwhether the error was harmless. The dissent, applyingthe standards set forth in Kotteakos, concluded that itwas not. The majority, applying the “more probablethan not” standard, concluded that it was. Thedifferences in their analyses demonstrate the principlesand dangers first articulated by the Kotteakos Court.

The dissent applied the standards set forth inKotteakos, focusing on the effect Dimora’s ethicsreports may have had on the jury’s deliberations anddecision. As the dissent noted, in general, “[d]isclosureis relevant to a public official’s subjective intent inbribery cases.” Pet. App. 23. That was all the more truein this case. The prosecutor emphasized Dimora’ssecrecy and nondisclosure in opening statement. Id.Dimora promised the jury in opening statement thathis ethics reports would refute the government’saccusations of concealment. Id. at 23-24. Thegovernment elicited testimony at least sixty times,from twenty different witnesses, that Dimora did notdisclose that he received things of value from allegedbribers, and the district court observed that it was“important to the government’s case to be able toindicate there wasn’t any disclosure.” Id. at 24. But thedistrict court then erroneously barred Dimora fromintroducing his ethics reports. Id. All of this led thedissenting judge to conclude that he could not be “‘surethe error did not influence the jury, or had but very

18

slight effect.’” Id. at 25 (quoting Kotteakos, 328 U.S. at764).

The majority applied the “more probable than not”standard and concluded that the error was harmless.In doing so, the majority demonstrated each of thedangers that the Kotteakos Court sought to prevent.

First, the majority focused on only the amount ofevidence in support of the verdict and ignoredweaknesses, limitations, and contrary evidence. Forexample, the majority noted that the “overwhelmingevidence” against Dimora included incriminating phonecalls and testimony from bribers and co-conspirators.Pet. App. 14. But the majority ignored that, in 44,000secretly recorded phone calls spanning 1,589 hours,Dimora never once said that he would do anything inexchange for anything of value; he never conditionedhis help on being given anything; and no one ever toldhim that they would give him anything in exchange forhis help. And the majority ignored that most of thealleged bribers and co-conspirators stopped short oftestifying that they had quid pro quo arrangementswith Dimora, and those that did had significantcredibility problems.5

The majority went so far as to find that Dimora“[c]onfirm[ed]” the overwhelming nature of theevidence against him by “not even independentlychalleng[ing] the sufficiency of the evidence on 28 ofthe 32 counts of conviction.” Id. But under the correct

5 Dimora explained these weaknesses in the government’sevidence, plus other limitations and contrary evidence, at pages21-27 of his reply brief on appeal.

19

analysis, harmless error and sufficiency of the evidenceare “entirely distinct.” United States v. Lane, 474 U.S.438, 450 n.13 (1986). Conflating the two demonstratesnot just that the majority applied the wrong standard,but that it led to the wrong inquiry. Cf. TRAYNOR,supra, at 28 (“All too often an appellate court confusesreview by applying the substantial evidence test todetermine whether an error is harmless.”).

Second, the majority made no “allowance for howothers might react and not be regarded generally asacting without reason.” Kotteakos, 328 U.S. at 763.Instead, the majority resolved against Dimoracompeting interpretations and inferences regarding theexcluded evidence.6 For example, the majorityconcluded that the ethics reports “do not contradict asingle element of these public-corruption convictions,”Pet. App. 15, ignoring that the government itselfargued that “secrecy is very relevant evidence of intentin a bribery case,” R. 1020, Tr. Vol. 13 at 3459. Themajority went so far as to conclude that Dimora’s ethics

6 The majority also simply erred in its review of the record. Forexample, it found that Dimora did not articulate his reasons foradmitting the ethics reports until the end of trial, Pet. App. 13, 17,when in fact he did so in a supplemental pleading before trial, seeR. 629, Resp. at 3 (arguing that Dimora’s ethics reports were“wholly probative and relevant to intent. Just as the Governmentwill argue that any attempt to conceal things of value from thealleged co-conspirators is evidence of criminal intent, Mr. Dimorashould be able to argue that the disclosure of things of value isrelevant to refuting intent.”); see also R. 1010, Tr. Vol. 4 at 890-91,899 (pretrial oral ruling allowing Dimora to introduce his ethicsreports during the defense case). It may be impossible to eliminatethat type of error, but its effect is magnified when combined withthe errors invited by use of an erroneous harmless-error standard.

20

reports would have been harmful to him because theydid not disclose two alleged bribers, Pet. App. 15-16,ignoring that he disclosed all of the other allegedbribers (which would have refuted the government’sallegations of concealment on the vast majority of thecounts against him), and ignoring also the possibilitythat, once the jury learned that all others weredisclosed, it may well have concluded that Dimora hadreasons other than to conceal the receipt of bribes fornot disclosing the name of his affair partner and a manwho paid for prostitutes.

Dimora submits that it is more likely that the jurywould have found that his ethics reports—which hehighlighted in opening statement, and which thegovernment repeatedly attempted to exclude fromevidence—were helpful to him rather than harmful.But, again, that is the wrong inquiry. Applying the“more probable than not” standard, the majority chosewhich among competing interpretations and inferencesit believed the jury was more likely to adopt, one of thevery dangers that the Kotteakos Court sought to avoid.

CONCLUSION

The petition for a writ of certiorari should begranted.

21

Respectfully submitted,

Christian J. Grostic Counsel of RecordKUSHNER & HAMED CO., LPA1375 East Ninth St., Ste 1930Cleveland, OH 44114(216) 696-6700cgrostic@khlpa.com

Counsel for Petitioner

July 14, 2014

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion and Judgment in the UnitedStates Court of Appeals for the SixthCircuit(April 30, 2014) . . . . . . . . . . . . . . App. 1

Appendix B Judgment in a Criminal Case in theUnited States District Court for theNorthern District of Ohio(August 1, 2012) . . . . . . . . . . . . . App. 27

App. 1

APPENDIX A

RECOMMENDED FOR FULL-TEXTPUBLICATION

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Nos. 12-4004/4051

[Filed April 30, 2014)______________________________________UNITED STATES OF AMERICA, )

Plaintiff-Appellee, ))

v. ))

JAMES C. DIMORA (12-4004) and )MICHAEL D. GABOR (12-4051); )

Defendants-Appellants. )_____________________________________ )

Appeal from the United States District Courtfor the Northern District of Ohio at Cleveland

No. 1:10-cr-00387—Sara E. Lioi, District Judge.

Argued: March 12, 2014

Decided and Filed: April 30, 2014

Before: MERRITT, SUTTON and GRIFFIN, CircuitJudges.

App. 2

_________________

COUNSEL

ARGUED: Christian J. Grostic, KUSHNER & HAMEDCO., L.P.A., Cleveland, Ohio, for Appellant in 12-4004.David G. Oakley, Cleveland, Ohio, for Appellant in12-4051. Antoinette T. Bacon, UNITED STATESATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Christian J. Grostic, KUSHNER &HAMED CO., L.P.A., Cleveland, Ohio, for Appellant in12-4004. Leif B. Christman, Cleveland, Ohio, forAppellant in 12-4051. Antoinette T. Bacon, LauraMcMullen Ford, Ann C. Rowland, UNITED STATESATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

SUTTON, J., delivered the opinion of the court inwhich GRIFFIN, J., joined, and MERRITT, J., joinedexcept for Part V-i. MERRITT, J. (pp. 15-17), delivereda separate dissenting opinion as to that part.

_________________

OPINION _________________

SUTTON, Circuit Jude. In the aggregate, a juryconvicted two Cuyahoga County officials, JamesDimora and Michael Gabor, of 39 violations of federalanti-corruption laws stemming from their participationin a slate of bribery and fraud schemes involvingvarious Cleveland-area favor-seekers. Expensive tripsto Las Vegas in exchange for county patronage,thousands of dollars in cash in exchange forgovernment jobs, extensive home improvements to thetune of $30,000 in exchange for public constructioncontracts—these and other this-for-that arrangements

App. 3

were more than kindly gestures, more than mere“pleases” and “thank yous,” among friends. The juryinstead found, after a 37-day trial, that the evidenceshowed Dimora and Gabor participated in a host ofcorrupt bargains and arrangements prohibited byfederal law. We affirm their convictions and sentences.

I.

From 1998 to 2010, Dimora was one of three electedcommissioners for Cuyahoga County. Threecommissioners historically have led the government ofthe county, though that changed (perhaps due to thecharges in this and related cases) when the people ofCuyahoga County voted for a county executive form ofgovernment that started in 2011. Gabor occupied a lessprominent position in the county’s government. From2005 to 2010, he worked for the county’sweights-and-measures office, which inspects gaspumps, grocery store scanners, truck scales and thelike for accuracy.

In 2007, the FBI launched an investigation of publiccorruption in Cuyahoga County. Through thousands ofwiretaps and other means, the investigation revealedthat Dimora’s tenure as commissioner was rife withquid pro quo arrangements between him andindividuals seeking favors of one sort or another fromthe county and other governments. He handed outpublic jobs, influenced Cleveland decision-makers andsteered public contracts in return for approximately100 bribes worth more than $250,000. A few examplesillustrate the pattern. A contractor named FerrisKleem testified that he funded a trip to Las Vegas forDimora, covering the costs of gambling chips, luxuryhotel suites and a $2,219 dinner. In exchange, Kleem

App. 4

got “influence at Cuyahoga County and . . . protectionfor [his] businesses.” R. 1014 at 41. “I . . . expected that[Dimora] would do me favors,” Kleem testified, “and healways did.” Id. at 78. Charles Randazzo, a retirementplan salesman, testified that he won CuyahogaCounty’s business after giving Dimora a $1,079cashier’s check, which Dimora used to buy a tiki hut forhis backyard. As Frank Russo, the County Auditor whopleaded guilty to several counts of public corruptioncovering the same time period, described therelationship, “[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 betweenDimora and Rob Rybak, a plumbers’ unionrepresentative, who said that he would cover the costof a prostitute for Dimora if the county hired moreplumbers. “[W]e’ll handle it,” Dimora told Rybak, andhe did. R. 1020 at 180. And in return for jobs for familyand friends, Nicholas Zavarella performed more than$30,000 of home improvement work on Dimora’s housefree of charge.

While Gabor did not wield Dimora’s authority orreceive as many meals, gifts, trips and homeimprovements, he was not afraid to use his influence insimilar ways for similar reasons. He started on thewrong 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 Dimorathat had nothing to do with the customaryrequirements of the job. Among other things, he was ago-between in arranging kickback schemes on countyprojects. And when Gabor learned that the FBI wasinvestigating him, he warned his co-conspirators about

App. 5

the investigation and tried to convince them to lieabout what they were up to.

After a 37-day trial recounting these and manyother comparable acts and featuring Russo as a leadwitness, a jury convicted Dimora and Gabor of variousfederal crimes, including conspiracy, bribery, fraud andobstruction of justice. The district court sentencedDimora to 336 months in prison and Gabor to 121months.

II.

Gabor and Dimora challenge the jury instructionson several grounds. Gabor first attacks the unanimityinstruction on the RICO charge. The statute makes itunlawful to conspire to participate in the affairs of anenterprise through a “pattern of racketeering activity.”18 U.S.C. § 1962(c), (d). The court instructed the jurythat to convict Gabor on the charge it “must beunanimous as to which type or types of predicateracketeering activity [he] agreed would be committed.”R. 1044 at 145–46. Gabor claims the court should havesaid more, requiring unanimity about which acts theconspirators agreed to commit, not which types of actsthey agreed to commit. Even if Gabor were entitled tothis additional instruction, a point we need not decide,any confusion on this score is of his own making. Thedistrict court offered to give a special verdict form,which would have asked the jurors to indicate whichalleged acts contributed to their conspiracy conviction.Gabor rejected the offer, insisting that the court askthe jury for a general verdict on the RICO charge.Having invited this general verdict, Gabor cannotcomplain about the (alleged) lack of detail it now

App. 6

provides. United States v. Sharpe, 996 F.2d 125, 129(6th Cir. 1993).

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

The defendants notably do not claim that theseinstructions misdescribe the line. They instead arguethat the district court should have given additionalinstructions to clarify the distinction still further. Theyasked for an instruction that “[p]ayments forentertainment, lodging, [and] travel . . . are not bribesif the aim of the giver is to cultivate . . . ‘friendship’with the public official.” R. 665 at 2. And they asked foran instruction that “[t]he generalized hope orexpectation of ultimate benefit on the part of the giverdoes not constitute a bribe.” Id. But the jury alreadyknew that property given in friendship and withoutexpectation does not amount to a bribe, and the juryalready heard that bribery does not include gifts givenin the hope that “at some unknown, unspecified time,

App. 7

[a public official might] act favorably in the giver’sinterests,” R. 1044 at 48–49. Choosing different wordsto explain the same concept does not amount to anabuse of discretion. United States v. Jones, 647 F.2d696, 700 (6th Cir. 1981).

III.

The jury convicted Dimora of 32 separate counts ofbribery, fraud, obstruction of justice and other crimes.He challenges the sufficiency of the evidenceconcerning four of those counts, involving two HobbsAct bribery schemes (one involving Nicholas Zavarella,a masonry contractor, the other involving JohnValentin, the owner of a granite shop) and one fraudscheme (involving Gina Coppers). As for the rest,Dimora says nothing with respect to the sufficiency ofthe evidence to convict him. We may overturn the jury’sverdict on these four counts only if, after “viewing theevidence in the light most favorable to the prosecution,[no] rational trier of fact could have found the elementsof the crime beyond a reasonable doubt.” Jackson v.Virginia, 443 U.S. 307, 310 (1979).

To convict Dimora under the Hobbs Act, thegovernment needed to show that Dimora “obtained apayment to which he was not entitled, knowing thatthe payment was made in return for official acts.”Evans v. United States, 504 U.S. 255, 268 (1992). Thejury thus had to find that individuals gave Dimorathings of value in connection with an “agreement” totake official actions. Id.; see also Terry, 707 F.3d at 613.The jury heard plenty of evidence to convict Dimora onthis score—from Dimora’s co-conspirators and from thebribers themselves.

App. 8

Start with the testimony of Russo, the countyauditor and a confessed kingpin in this corruptionracket. He testified that Dimora went to great lengthsto help Zavarella, because of “all [the things Zavarellahad] done for him.” R. 1039 at 164. The same was trueof Valentin. Russo admitted to entering an agreementwith Valentin, in which Valentin would performgranite work at Russo’s home for free in return forRusso giving county jobs to Valentin’s friends andfamily members. Russo then testified that he brokereda similar quid pro quo arrangement between Valentinand Dimora. When Dimora asked if Russo knew anygranite workers, Russo told him that Valentin was“very, very, very reasonable.” Id. at 177. Even thatturned out to be an under-statement: All that Dimorahad to do for the work was “tip[] the employees” whoinstalled the granite—and provide Valentin withcounty favors. Id.

Zavarella and Valentin confirmed Russo’s version ofevents. Zavarella told the jury that he performed morethan $30,000 in brickwork at Dimora’s home for free.When asked why he did the work gratis, Zavarellatestified that “[Dimora] was a friend and a politicalofficial, and I figured if I could help him, I’m sure hecould help me.” R. 1037 at 10. So he could, and so hedid. Dimora helped Zavarella’s daughter get a countyjob, and he gave Zavarella inside information aboutcounty construction projects. On top of this, Zavarellaexplained that Dimora wanted to hide their agreementby creating false, backdated invoices for the brickwork.Valentin told a similar story. He installed granitecountertops (worth $3,250) in Dimora’s home free ofcharge, in return for “help” and “favors” from thecommissioner. R. 1036 at 178. Dimora obliged. He used

App. 9

his influence to help Valentin’s family withimmigration green cards and county jobs. Dimora triedto cover up this arrangement too. On May 23, 2008, thesame day he learned about the FBI investigation,Dimora sent Valentin a $250 check for (some of)Valentin’s granite work. All of this presents “strongcircumstantial evidence that [Dimora] had . . . corruptbargain[s]” with these contractors. Terry, 707 F.3d at615.

Dimora responds that Zavarella and Valentinexhibited only “generalized hope[s] . . . of ultimatebenefit,” which do not suffice under the Hobbs Act.Dimora App. Br. at 54. But a jury could readily findthat the free granite and bricks were notout-of-the-blue gifts designed only to “foster a favorablebusiness climate,” particularly in light of Russo’stestimony that he engaged in many of the samepay-to-play arrangements. United States v. Jennings,160 F.3d 1006, 1013 (4th Cir. 1998). They were thingsof value given in the expectation that help was on theway, all tied to agreements, not transient hopes. WhenDimora agreed to these schemes, he crossed the lineseparating gifts from bribes. See Terry, 707 F.3d at614–15; United States v. Whitfield, 590 F.3d 325, 350(5th Cir. 2009).

Dimora persists that he did not do anything“official” for Valentin. As Dimora sees it, he simplyoffered a friend a favor, dropping a letter in the mail toask one of Ohio’s senators for help with a green card.But Dimora was not just another concerned Ohiocitizen. He was one of three county commissioners, whowas not shy about deploying the power that came withthe office. In this instance, he directed a county

App. 10

employee to lobby the senator’s staff about the greencard. And in a separate act, he voted to approve extrafunds for the county auditor’s office in order to getValentin’s daughter a job. On this evidence, areasonable trier of fact could conclude that Dimoraused his “public influence” on Valentin’s behalf inexchange for home improvements. United States v.Abbey, 560 F.3d 513, 518–19 (6th Cir. 2009).

Dimora’s challenge to his fraud conviction fares nobetter. “Honest services mail fraud requires thegovernment to prove that the defendant used the mailto carry out a scheme or artifice to defraud another ofthe intangible right of honest services.” Terry, 707 F.3dat 611 (citations and internal quotation marksomitted). “That intangible right . . . covers onlyschemes in which the defendant . . . participat[es] in abribery or kickback scheme,” which requires an“agreement to . . . recei[ve] something of value inexchange for an official act.” Id. at 611–12 (internalquotation marks omitted). Plenty of evidence supportsDimora’s conviction. The government introducedintercepted phone calls and other evidence indicatingthat Dimora shared a $121 hotel room with Coppersand that Coppers footed the bill, all in the context of anagreement to land a government job for Coppers. Andnot just any public job. The calls reveal that Coppershad “very specific” demands “as far as days of the weekand amount of salary she wanted and where shewanted to work,” if indeed she was expected to work. R.1019 at 139. After their sexual rendezvous, Dimoracontacted municipal officials by phone and by mail inan effort to get Coppers employed on her terms. Hotelrooms, a public official, sexual favors, help finding agovernment job: If there is anything to criticize here, it

App. 11

is not that the evidence fails to support the jury’sverdict; it is that the saga is so cliché.

Dimora counters that his phone calls and mailingswere not official acts because he did not have a role inhiring municipal employees. Direct role, no; indirectrole, yes. Dimora had considerable influence over suchdecisions, and he was not afraid to use it. “Actualauthority over the end result . . . is not controlling if[Dimora], through his official position, had influenceand authority over a means to that end.” United Statesv. Loftus, 992 F.2d 793, 796 (8th Cir. 1993). Dimoraheld considerable “influence” and “authority” over cityemployees. His votes as commissioner could loosen (ortighten) the county’s municipal-funding purse strings.A rational jury could conclude that Dimora used thispower to serve Coppers’ interests—and his own.

IV.

Gabor claims that the district court abused itsdiscretion in failing to grant his motion for a new trial,which required him to show that his convictions forbribery, obstruction of justice and RICO conspiracywere against the manifest weight of the evidence.United States v. Hughes, 505 F.3d 578, 592 (6th Cir.2007). No abuse of discretion occurred.

On each contested charge, the government producedmore than enough evidence to convict. Begin with thebribery charges surrounding Steven Pumper: Pumpertold the jury that he agreed with Gabor to paykickbacks on contracts awarded to Pumper’s company.Continue with the obstruction-of-justice charge: Thejury listened to a phone call in which Gabor coached aco-conspirator about what to say to government

App. 12

investigators. “[Y]ou didn’t pay for your job,” Gaborsaid, “[and] I didn’t pay for my job.” R. 1020 at 83.Finish with the conspiracy charge: The jury could takeits pick of Gabor’s RICO-violating behavior, includingjob buys, bribery schemes and cover-up attempts.Ample evidence supported these convictions.

Gabor’s primary rejoinder is to question the force ofsome of the evidence. He argues that Pumper’stestimony about the kickback scheme was notsufficiently specific, and he contends that onegovernment witness was not credible. But this line ofargument invites us into the forbidden territory ofre-weighing the evidence. In some settings, it is true, adistrict court judge, who had a ring-side seat at thetrial, may appropriately “act as a thirteenth juror,assessing the credibility of the witnesses and theweight of the evidence.” Hughes, 505 F.3d at 593. Yetappellate court judges, who have only a transcript towork with, have no such authority. United States v.Lutz, 154 F.3d 581, 589 (6th Cir. 1998); see also UnitedStates v. Poynter, 495 F.3d 349, 351–52 (6th Cir. 2007).Our task is only to answer whether the district courtabused its discretion in reviewing the new trial motion.It did not.

V.

Dimora argues that the district court erred when itexcluded from evidence (1) his state ethics reports (andthe reports of Russo), and (2) evidence of hisnoncriminal acts.

i. Ethics reports. If admitted, Dimora’s end-of-yearethics reports would have shown that he reportedreceiving “gifts” from several alleged bribers between

App. 13

the years 1997 and 2010. But the district courtconsidered the reports inadmissible hearsay—out-of-court statements offered to prove the truth of thematter asserted. Fed. R. Evid. 801(c). Was this error?

Yes, though in the district court’s defense Dimorapresented a moving target over how he planned to usethe reports. Before trial, Dimora vaguely said hewanted to “touch upon” his reports and disclosurerequirements. R. 602 at 40. Further discussions of thetopic did not clarify matters. After several pre-trialmotions on the subject, the district court, quiteunderstandably, noted that it was “unclear . . . thepurpose for which [Dimora] would offer” the reports. R.602 at 40. Only at the trial’s end did Dimora settle ona clear admissibility theory: “The financial statementsare not being offered for the truth of the matterasserted,” he argued, “but [simply] to prove that astatement was made”—that he filed these reports andthat, on a line for things of value worth more than $75,he listed several items from several people, includingsome alleged bribers in the case. R. 894 at 75. At thatpoint, albeit at that late point in the trial, Dimora hadoffered the reports for a non-hearsay purpose. Thedistrict court thus erred when it ruled otherwise.

But the district court not only excluded the reportson hearsay grounds, it also excluded them on Rule 403grounds, fearing that the introduction of the reportswould lead to mini-trials about the purpose of the Ohioethics reports and the reasons why Dimora listed somethings of value from some people but not others fromother people.

We need not decide whether this Rule 403 rulingwas correct, because either way any error was

App. 14

harmless in view of the considerable array of evidenceagainst Dimora. If a district court incorrectly excludesevidence, we will not reverse unless the error affectedthe defendant’s “substantial rights,” Fed. R. Crim.P. 52(a), asking whether “it is more probable than notthat the error materially affected the verdict,” UnitedStates v. Davis, 577 F.3d 660, 670 (6th Cir. 2009). Toanswer that question, we focus on “what the errormeant to [the jury], not singled out and standing alone,but in relation to all else that happened” at trial.Kotteakos v. United States, 328 U.S. 750, 764 (1946);see also United States v. Lane, 474 U.S. 438, 449–50(1986). Exclusion of the reports did not alter the verdictfor several reasons.

First, the government produced overwhelmingevidence against Dimora. It included: incriminatingphone calls between Dimora and alleged bribe-payers;testimony from the bribers themselves admitting totheir quid pro quo arrangements with Dimora;testimony from co-conspirators, including CountyAuditor Russo who explained how Dimora’s dealingsworked and pleaded guilty to charges arising fromsimilar arrangements, indeed in some instances to thesame arrangements; circumstantial evidenceconnecting the bribes received to the favors doled out;and documentary evidence highlighting Dimora’selaborate steps to cover his tracks once he learned theFBI was on his trail. This case had it all. Oneevidentiary mistake, if a mistake it was, in the contextof all else that happened at this 37-day trial would nothave made a difference to the jury. See Lane, 474 U.S.at 450. Confirming the point, Dimora himself does noteven independently challenge the sufficiency of theevidence on 28 of the 32 counts of conviction.

App. 15

Second, Dimora’s ethics reports would have donelittle to tip the scales against the overwhelming weightof this evidence. Keep in mind that the reports do notcontradict a single element of these public-corruptionconvictions. The relevant crimes required a quid proquo arrangement—accepting money or other things ofvalue in exchange for official acts. That Dimoraapparently reported some $75 things of value saysnothing about whether he undertook corrupt bargains.By the end of the trial, moreover, Dimora’s limitedtheory of admissibility was that the reports would notbe offered for their truth (i.e., that what he disclosedwas in any way accurate or complete), but for thelimited fact that he sometimes disclosed receiving somethings from some people. Remember also that theethics reports could not provide the jury muchinformation: The reports required Dimora to discloseall sources of things of value over $75 and “meals, food,or beverages” over $100, but nowhere on the forms didDimora report what items and meals he received orwhen he received them—or how much over $75 or $100the items happened to cost. E.g., R. 940-2 at 150.Nothing about Dimora’s limited theory of admissibilitywould have shown that a single disclosure related to asingle bribe. Does the “Kevin Kelley” entry in 2008mean he disclosed receiving thousands of dollars forfirst-class plane tickets to Las Vegas? The jurors couldnot tell, and the ethics report of course disclosed nosuch detail. Excluding evidence with such limitedexculpatory value is the quintessence of harmlessness.See United States v. Rayborn, 491 F.3d 513, 518 (6thCir. 2007).

Third, the admission of the ethics reports wouldhave hurt Dimora by opening the door to other evidence

App. 16

that would have done him no favors. The ethics reportsincluded the names of certain alleged bribers. Butothers are conspicuously absent from the list. Where,for example, is Kevin Payne’s name? The evidenceshowed that he paid for Dimora’s use of limousineservices, that he covered the cost of prostitutes, andthat he picked up the check at more than a fewexpensive dinners. What of Gina Coppers? She paid forDimora’s hotel room. A jury reading Dimora’s reportscould only conclude that he was indeed hidingthings—and breaking Ohio disclosure laws in theprocess. See Ohio Rev. Code § 102.02. Excluding thereports was harmless error because including thereports would have been harmful.

Dimora responds (and our colleague notes indissent) that excluding the reports was not harmless,because “secrecy” was central to the government’s caseand the government asked several questions at trialabout whether Dimora disclosed receiving things ofvalue from alleged bribers. Yes, the government askedwitnesses to describe what Dimora revealed about hisdealings with certain contractors. But no, thesequestions had nothing to do with Dimora’s disclosuresto the Ohio Ethics Commission. The governmentrepeatedly asked county employees whether Dimoradisclosed receiving things of value “[d]uring the bidprocess,” R. 1017 at 112, or “[d]uring the time that thisproject was being considered,” R. 1034 at 18. The pointwas to show that Dimora made phone calls and heldmeetings on the bribers’ behalf without disclosing thetrue motive behind the calls and meetings at the time.That Dimora told state officials about “gift” givers ayear after the fact does nothing to rebut this point.

App. 17

Dimora and the dissent persist that the error musthave swayed the jury, because during openingstatements Dimora’s counsel mentioned the reports.But that statement occurred at a time when Dimora’stheory of admissibility remained a moving target.Dimora’s counsel, as it turned out, promised more thanthe evidence could possibly show, telling the jury thatthe reports would reveal “everybody that bought himdinner, everybody that gave him things of value.”R. 1010 at 119. No theory of admissibility would haveallowed the ethics reports to be used for that purpose,as Dimora ultimately conceded with his more limitedtheory of admissibility at the end of trial, and thedistrict court never said otherwise. Plus, Dimora’scounsel promised more than he could have deliveredeven on his own terms. As just noted, several bribers’names were never mentioned in the ethics reports. Thissimply is not a case in which it is “more probable thannot that the error materially affected the verdict.”Davis, 577 F.3d at 670.

ii. Other-acts evidence. Not unlike his argument insupport of admitting the ethics reports, Dimora alsohoped to present evidence of other “good acts”—that onseveral occasions he helped constituents “withoutasking for . . . or receiving anything of value.” DimoraApp. Br. at 41. The district court excluded this evidencefrom trial, ruling that it did not satisfy therequirements of Federal Rule of Evidence 404(b).Dimora calls this an abuse of discretion.

We disagree. Rule 404(b) precludes the use ofother-acts evidence to “prove a person’s character,” butit allows such evidence for other purposes, such asproving intent. Before admitting other-acts evidence for

App. 18

such a non-character purpose, however, the districtcourt must decide whether the evidence is probative ofthat limited purpose. United States v. Jenkins, 345F.3d 928, 937 (6th Cir. 2003). Dimora’s evidence doesnot hit the target. All it would have shown is that, insituations unrelated to the charges, Dimora did favorsfor people who did not pay him bribes. For the samereason that prior “bad acts” may not be used to show apredisposition to commit crimes, prior “good acts”generally may not be used to show a predisposition notto commit crimes. Consider United States v. Qaoud, acase involving kickbacks in exchange for official favorsfrom a state court judge. The defendant judge asked tointroduce evidence that on one uncharged occasion herefused to help a known “influence peddler.” 777 F.2d1105, 1111 (6th Cir. 1985). We concluded that theevidence of this “totally different incident . . .demonstrate[d] little or nothing about [the judge’s]intent on the charges made in th[e] indictment.” Id.Just the same here. Regrettably for Dimora, the Latinmaxim falsus in uno, falsus in omnibus—false in one,false in all—does not have an inverse corollary: true inone, true in all.

Dimora responds with two complaints—onesubstantive, one procedural. On the substance, hesuggests that his other-acts evidence was relevant tointent, because the government argued that he alwaysgave bribe-payers special treatment. But this was notthe government’s theory. The trial, true enough,brought to light a pervasive, deep-seated briberyconspiracy in Cuyahoga County, but the governmentbuilt its case on agreements between Dimora and aclosed circle of bribers. Dimora’s evidence about acts

App. 19

with no connection to these agreements tells us nothingrelevant about his case.

As for procedure, Dimora argues that “the courtfailed to apply any steps of the standard [404(b)]analysis when it addressed Dimora’s evidence.” DimoraApp. Br. at 41. But this argument has been raised andrejected in this circuit. We do not require district courtsto follow “a rigid order of battle” when consideringother-acts evidence. United States v. Tasis, 696 F.3d623, 628 (6th Cir. 2012). So long as “a court . . .exercise[s] its discretion within the boundaries of theRule,” we will accept the court’s decision-makingprocess. Id.

VI.

Gabor argues that the district court erred when it(1) denied his motion to try him separately fromDimora, and (2) imposed a procedurally andsubstantively unreasonable sentence.

Motion to sever. Gabor claims that the district courtshould have granted a pre-trial motion to sever histrial, because the joint trial caused “spillover prejudice”based on Dimora’s bad acts. Gabor App. Br. at 10.Because Gabor did not renew his motion at the close ofevidence, the district court’s decision must stand unlessit plainly erred. United States v. Talley, 194 F.3d 758,765 (6th Cir. 1999).

No error, plain or otherwise, occurred. “Joint trialsare favored in this circuit,” United States v. Tocco, 200F.3d 401, 413 (6th Cir. 2000), and the “spillover ofevidence from one case to another does not requireseverance,” United States v. Gallo, 763 F.2d 1504, 1526(6th Cir. 1985). Nor has Gabor shown prejudice to his

App. 20

case. All signs suggest the opposite. The jury did its job,separately evaluating the evidence against thedefendants on each count, convicting and acquittingDimora on some charges, and doing the same for Gaboron others.

Sentencing reasonableness. Gabor argues that his121-month sentence is unreasonable for two reasons:The district court clearly erred when it calculated theamount of loss attributable to his conduct, and itabused its discretion when it gave him a sentencesubstantially longer than that of his co-conspirators.He is wrong on both fronts.

The Sentencing Guidelines allow a court to increasea defendant’s offense level in bribery cases, “[i]f thevalue of the . . . loss to the government from the offense. . . exceeded $5,000.” U.S.S.G. § 2C1.1(b)(2). The courtestimated that Gabor spent half of his time performinglegitimate government work for the county auditor.The rest went toward the conspiracy. The governmenttherefore lost 50% of Gabor’s salary and benefits foreach of his five years in the county’s employ—a total of$118,242.89. No doubt, this loss calculation is not apicture of precision. But it does not have to be. Areasonable estimate will do. United States v. Triana,468 F.3d 308, 320 (6th Cir. 2006).

Gabor responds that 50% is an unreasonableestimate, arising out of “sheer speculation.” Gabor App.Br. at 61. But that is not what the evidence shows.Kelley testified that Gabor worked only “an hour or twoa day” and that he spent the bulk of his time “doingstuff for [Dimora].” R. 1026 at 59. Russo testified thatGabor ran “a lot of errands for [Dimora]” during theworkday. R. 1039 at 132. Pumper testified that he saw

App. 21

Gabor swimming at Dimora’s house “[t]wo to threetimes [each work] week.” R. 1034 at 247. And Dimoraonce told Kelley that Gabor “puts in very little time” atthe office, calling the job a “jackpot” for Gabor. R. 1026at 60. Attributing just half of Gabor’s salary andbenefits as loss when, on this record, the court couldhave attributed far more does not amount to clearerror.

As for his 121-month sentence, it falls within therecommended guidelines range, meaning that we givethe sentence a rebuttable presumption ofreasonableness. United States v. Vonner, 516 F.3d 382,389 (6th Cir. 2008) (en banc). Gabor tries to rebut thispresumption by pointing to “disparities” between hissentence and those of his co-conspirators. See 18 U.S.C.§ 3553(a)(6). But this is not enough. The guidelinesconcern “national disparities between defendants . . .not disparities between co-conspirators.” United Statesv. Wallace, 597 F.3d 794, 803 (6th Cir. 2010) (internalquotation marks and alteration omitted). And even ifthat were not the case, the alleged disparities wouldnot help Gabor anyway. Several of the other defendantscooperated with the government (e.g., Kelley andPumper). And all but one of the others pled guilty.Gabor did neither of these things, further justifying thedifference between his sentence and theirs. UnitedStates v. Carson, 560 F.3d 566, 586 (6th Cir. 2009).

VII.

For these reasons, we affirm Dimora’s and Gabor’sconvictions and sentences.

App. 22

_________________

DISSENT _________________

MERRITT, Circuit Judge, dissenting. In thisbribery case, I agree with my colleagues that the ethicsreports showing disclosure of Dimora’s gifts wereclearly admissible, but I disagree that their exclusionwas “harmless error.”

Subjective intent is the keystone of bribery. Theinfluence of money in politics is growing by leaps andbounds, and the subjective intent of the public officialreceiving the money is perhaps the last and onlydistinguishing feature between criminal “quid pro quobribery” and permissible “ingratiation.” The exchangeof money for a vote is a crime that threatens thefoundation of democracy. Buckley v. Valeo, 424 U.S. 1,26-27 (1976). The exchange of money for “ingratiationand access is not corruption” at all; indeed, theexchange is so essential to the foundation of democracythat it is protected by the First Amendment.McCutcheon v. FEC, 134 S.Ct. 1434, 1441 (2014)(internal edits omitted). We are left to distinguish thetwo as best we can by looking into the subjective intentof the public official.

And by we, I mean the jury. As Judge Suttonexplained in Terry, “most bribery agreements will beoral and informal” such that one must build on“inferences taken from what the participants say, meanand do.” 707 F.3d 607, 613 (6th Cir. 2013). Ephemeral“[m]otives and consequences, not formalities, are thekeys for determining whether a public official enteredan agreement to accept a bribe.” Id. (internal quotation

App. 23

marks omitted). Fortunately, these are “all mattersthat juries are fully equipped to assess,” as juries are“quite capable of,” if not most expert at, “deciding theintent with which words were spoken or actions takenas well as the reasonable construction given to them bythe official and the payor.” Id. (internal quotationmarks omitted).

Disclosure is relevant to an official’s subjectiveintent in bribery cases. Disclosure “offers a particularlyeffective means of arming the voting public withinformation.” McCutcheon, 134 S. Ct. at 1459-60.Information is important if it alerts voters to thepotential influences and motives of the officials whohold their trust, so that they (like juries) can buildupon facts and inferences to reward or punish at thepolls. Buckley, 424 U.S. at 66-67. As such, while theydo not immunize an official’s actions, public disclosures“discourage those who would use money for improperpurposes” and “tend to prevent the corrupt use ofmoney” in politics, making such disclosures relevant toan official’s intent. Id. at 67-68.

My colleagues discount the influence Dimora’sdisclosures could have had on the jury. They think thatthe evidence against Dimora was overwhelming andthat any error excluding the report is harmless. Theyignore, however, facts that are often of moreimportance to a jury than to an appellate judge. Theyignore that the prosecutor promised the jury that shewould show a culture of secrecy and nondisclosureshielding Dimora’s corruption. They ignore thatDimora promised, after assurance from the districtcourt that the ethics reports could be admitted, to rebutthe government’s claim by showing the jury reports

App. 24

disclosing Dimora’s relationship with his allegedbribers. These reports, Dimora argued, would show arelationship of “ingratiation and access” that may havebeen deplorable but was arguably legal. They ignorethat the district court said in open court before the jurythat “it’s very important to the government’s case to beable to indicate there wasn’t any disclosure” ofDimora’s political patronage. They ignore that theprosecutor also understood how important the ethicsreports were. The prosecution fought tooth and nail, insidebar and outside of the jury’s presence, to keep theseethics reports out of evidence. Dimora tried tointroduce or reference these reports at least fourtimes—during motions prior to trial, before openingarguments, during his case, and at the close of thedefense. Dimora argued correctly that the reports werenot hearsay and relevant to Dimora’s subjective intent.The district court rejected Dimora’s correct argumentseach time, relying on the prosecutor’s incorrectarguments that the reports were either irrelevant,hearsay, or too prejudicial to the government’snow-overwhelming case. They ignore that the districtcourt improperly prevented Dimora from followingthrough on his promise to show the jury the fact thathe disclosed to the public gifts from a number of the“payors.” These facts do not suggest a harmless error,but rather an error that could well have influenced thejury’s view of the case.

To what extent the reports would have influencedthe jury, I cannot and need not know. As appellatejudges, we are not qualified to stack inference oninference for a jury. It is our job to preserve trial byjury and leave such subjective conclusions to the jury.This is precisely why we must lean on harmless error

App. 25

only if we are “sure the error did not influence the jury,or had but very slight effect.” Kotteakos v. UnitedStates, 328 U.S. 750, 764 (1946). Until then, we “willpresume that the district court’s error was reversible.”United States v. Haywood, 280 F.3d 715, 724 (6th Cir.2002). We should not lift the presumption in this casewhere an individual is otherwise going to prison for 28years under the Sentencing Guidelines for a nonviolentcrime based purely on how a jury of twelve may assessthe question of his subjective intent.

App. 26

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Nos. 12-4004/4051

[Filed April 30, 2014]______________________________________UNITED STATES OF AMERICA, )

Plaintiff - Appellee, ))

v. ))

JAMES C. DIMORA (12-4004) and )MICHAEL D. GABOR (12-4051); )

Defendants - Appellants. )_____________________________________ )

Before: MERRITT, SUTTON, and GRIFFIN, CircuitJudges.

JUDGMENT

On Appeal from the United States District Courtfor the Northern District of Ohio at Cleveland

THIS CAUSE was heard on the record from thedistrict court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDEREDthat Dimora’s and Gabor’s convictions and sentencesare affirmed.

ENTERED BY ORDER OF THE COURT

/s/_____________________________________Deborah S. Hunt, Clerk

App. 27

APPENDIX B

AO 245B (Rev. 09/11) Judgment in a Criminal Case

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF OHIO

Case Number: 1:10CR00387-001USM Number: 56275-060

[Filed August 1, 2012]________________________________UNITED STATES OF AMERICA )

)v. )

)JAMES C. DIMORA )________________________________ )

JUDGMENT IN A CRIMINAL CASE

Andrea L. Whitaker and William T. Whitaker, Jr. Defendant’s Attorney

THE DEFENDANT:

* * *

: was found guilty on count(s) 1-9, 11-29, 34-37 of theThird Superseding Indictment after a plea of notguilty.

The defendant is adjudicated guilty of these offenses:

App. 28

Title &Section

Nature ofOffense

OffenseEnded

Count

18 U.S.C.§ 1962(d)

RacketeerInfluenced andCorruptOrganizationsConspiracy

1

18 U.S.C.§ 1349

Conspiracy toCommit MailFraud andHonestServices MailFraud

2, 9, 16

18 U.S.C.§ 1951

Hobbs ActConspiracy*Count 3, 12,14, 21, 22, 24,26

*

18 U.S.C.§ 1951

Hobbs Act**Count 7, 8,11, 13, 15, 20,23, 25, 27

**

18 U.S.C.§ 371

Conspiracy toCommitBriberyConcerningProgramsReceiving Fed.Funds

4, 17

App. 29

: See additional count(s) on page 2

The defendant is sentenced as provided in pages 2through 9 of this judgment. The sentence is imposedpursuant to the Sentencing Reform Act of 1984.

: The defendant has been found not guilty on count(s) 10

* * *

It is ordered that the defendant must notify theUnited States attorney for this district within 30 daysof any change of name, residence, or mailing addressuntil all fines, restitution, costs, and specialassessments imposed by this judgment are fully paid.If ordered to pay restitution, the defendant must notifythe court and the United States attorney of materialchanges in economic circumstances.

07/31/2012 __ Date of Imposition of Judgment

s/ Sara Lioi Signature of Judge

s/ Honorable Sara Lioi U.S. District JudgeName of Judge Title of Judge

08/01/2012 Date

App. 30

ADDITIONAL COUNTS OF CONVICTION

Title &Section

Nature ofOffense

OffenseEnded

Count

18 U.S.C.§§ 666(a)(1)(B) & 2

BriberyConcerningProgramsReceiving Fed.Funds, Aiding/Abetting

5, 6,18, 19

18 U.S.C.§§ 371

Conspiracy toObstructJustice

28

18 U.S.C.§§ 1519 and2

Destruction/Alteration/Falsification ofRecords in Fed.Investigations

29

26 U.S.C.§ 7206(1)

Filing FalseTax Returns

34-37

IMPRISONMENT

The Defendant is hereby committed to the custodyof the United States Bureau of Prisons to beimprisoned for a total term of:

240 months as to Counts 1-3, 7-9, 11-16, 20-27, 29; 60months as to Counts 4, 17, 28; 120 months as to Counts5, 6, 18, 19; and 36 months as to Counts 34-37. AllCounts to run concurrent with each other except Count28, which is to run consecutive to Counts 1-3, 7-9,

App. 31

11-29, and Counts 34-37 shall run consecutive to Count28 (as well as Counts 1-3, 7-9, 11-29), for a total of 336months.

: The court makes the following recommendationsto the Bureau of Prisons:

That the defendant be placed at FCC Butner located inButner, NC.

: The defendant is remanded to the custody of theUnited States Marshal.

* * *

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shallbe on supervised release for a term of: 3 years. This term consists of terms 3 years on each ofCounts 1-9 and 11-29, and terms of 1 year on each ofCounts 34-37, with all terms to run concurrently.

The defendant must report to the probation office inthe district to which the defendant is released within72 hours of release from the custody of the Bureau ofPrisons.

The defendant shall not commit another federal, stateor local crime.

The defendant shall not unlawfully possess a controlledsubstance. The defendant shall refrain from anyunlawful use of a controlled substance. The defendantshall submit one drug test within 15 days of releasefrom imprisonment and at least two periodic drug teststhereafter, as determined by the court.

App. 32

Q The above drug testing condition is suspended,based on the court’s determination that thedefendant poses a low risk of future substanceabuse. (Check, if applicable.)

: The defendant shall not possess a firearm,ammunition, destructive device, or any otherdangerous weapon. (Check, if applicable.)

: The defendant shall cooperate in the collection ofDNA as directed by the probation officer. (Check, ifapplicable.)

Q The defendant shall comply with the requirementsof the Sex Offender Registration and NotificationAct (42 U.S.C. § 16901, et seq.) as directed by theprobation officer, the Bureau of Prisons, or anystate sex offender registration agency in which he orshe resides, works, is a student, or was convicted ofa qualifying offense. (Check, if applicable.)

Q The defendant shall participate in an approvedprogram for domestic violence. (Check, ifapplicable.)

If this judgment imposes a fine or restitution, it isa condition of supervised release that the defendantpay in accordance with the Schedule of Payments sheetof this judgment.

The defendant must comply with the standardconditions that have been adopted by this court as wellas with any additional conditions on the attached page.

App. 33

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the judicial districtwithout permission of the court or probationofficer;

2) the defendant shall report to the probationofficer in a manner and frequency directed bythe court or probation officer;

3) the defendant shall answer truthfully allinquiries by the probation officer and follow theinstructions of the probation officer;

4) the defendant shall support his or herdependents and meet other familyresponsibilities;

5) the defendant shall comply with the NorthernDistrict of Ohio Offender Employment Policywhich may include participation in training,education, counseling and/or daily job search asdirected by the pretrial services and probationofficer. If not in compliance with the condition ofsupervision requiring full-time employment at alawful occupation, the defendant may bedirected to perform up to 20 hours of communityservice per week until employed, as approved ordirected by the pretrial services and probationofficer.

6) the defendant shall notify the probation officerat least ten days prior to any change inresidence or employment;

7) the defendant shall refrain from excessive use ofalcohol and shall not purchase, possess, use,

App. 34

distribute, or administer any controlledsubstance or any paraphernalia related to anycontrolled substances, except as prescribed by aphysician;

8) the defendant shall not frequent places wherecontrolled substances are illegally sold, used,distributed, or administered;

9) the defendant shall not associate with anypersons engaged in criminal activity, and shallnot associate with any person convicted of afelony, unless granted permission to do so by theprobation officer;

10) the defendant shall permit a probation officer tovisit him or her at any time at home orelsewhere and shall permit confiscation of anycontraband observed in plain view of theprobation officer;

11) the defendant shall notify the probation officerwithin seventy-two hours of being arrested orquestioned by a law enforcement officer;

12) the defendant shall not enter into anyagreement to act as an informer or a specialagent of a law enforcement agency without thepermission of the court; and

13) as directed by the probation officer, thedefendant shall notify third parties of risks thatmay be occasioned by the defendant’s criminalrecord or personal history or characteristics andshall permit the probation officer to make suchnotifications and to confirm the defendant’scompliance with such notification requirement.

App. 35

“Upon finding of a violation of probation or supervisedrelease, I understand that the court may (1) revokesupervision, (2) extend the term of supervision, and/or(3) modify the conditions of supervision. Theseconditions have been read to me. I fully understand theconditions and have been provided a copy of them.”

Dated: Defendant U.S. Probation Officer

SPECIAL CONDITIONS OF SUPERVISION

Mandatory Drug TestingThe defendant shall refrain from any unlawful use of acontrolled substance and submit to one drug testwithin 15 days of the commencement of supervisionand to at least two periodic drug tests thereafter, asdetermined by the pretrial services & probation officer.

Search and Seizure The defendant shall submit his/her person, residence,place of business, computer, or vehicle to a warrantlesssearch, conducted and controlled by the U.S. ProbationOfficer at a reasonable time and in a reasonablemanner, based upon reasonable suspicion ofcontraband or evidence of a violation of a condition ofrelease; failure to submit to a search may be groundsfor revocation; the defendant shall inform any otherresidents that the premises may be subject to a searchpursuant to this condition.

Financial Disclosure The defendant shall provide the probation officer withaccess to any requested financial information.

App. 36

Financial Restrictions The defendant shall not incur new credit charges oropen additional lines of credit without the approval ofthe probation officer.

Drug Treatment and Testing The defendant shall participate in an approvedprogram of outpatient, inpatient or detoxificationsubstance abuse treatment, which will include drugand alcohol testing to determine if the defendant hasreverted to substance abuse.

Internal Revenue Service Condition The defendant is to fully cooperate with the InternalRevenue Service by filing all delinquent or amendedreturns within six months of sentence date and totimely file all future returns that come due during theperiod of supervision. The defendant is to properlyreport all correct taxable income and claim onlyallowable expenses on those returns. The defendant isto provide all appropriate documentation in support ofsaid returns. Upon request, the defendant is to furnishthe Internal Revenue Service with informationpertaining to all assets and liabilities, and thedefendant is to fully cooperate by paying all taxes,interest and penalties due, and otherwise comply withthe tax laws of the United States.

Financial Windfall Condition The defendant shall apply all monies received fromincome tax refunds, lottery winnings, judgments,and/or any other anticipated or unexpected financialgains to the outstanding court-ordered financialobligation.

App. 37

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminalmonetary penalties under the schedule of payments onSheet 6.

Assessment Fine Restitution

TOTALS $3,200.00 $0.00 $98,265.78plus 50% of thenet proceedsfrom the saleof thedefendant’spersonalresidence

Q The determination of restitution is deferred until___. An Amended Judgement in a Criminal Case(AO 245C) will be entered after such determination.

: The defendant must make restitution (includingcommunity restitution) to the following payees inthe amount listed below.

If a defendant makes a partial payment, each payeeshall receive an approximately proportionedpayment, unless specified otherwise in the priorityorder or percentage payment column below.However, pursuant to 18 U.S.C. § 3664(i), allnonfederal victims must be paid before the UnitedStates is paid.

App. 38

Name ofPayee

TotalLoss*

RestitutionOrdered

Priority orPercentage

CuyahogaCounty, c/oCuyahogaCountyAdministrator,1219 OntarioSt., 4th Floor,Cleveland,Ohio 44113

$98,265.78

TOTALS $0.00 $98,265.78plus 50% of the net proceedsfrom the sale of thedefendant’s personalresidence

: See page 5A for additional criminal monetaryconditions.

Q Restitution amount ordered pursuant to pleaagreement: $

Q The defendant must pay interest on restitution anda fine of more than $2,500.00, unless the restitutionor fine is paid in full before the fifteenth day afterthe date of the judgment, pursuant to 18 U.S.C.§ 3612(f). All of the payment options on Sheet 6 maybe subject to penalties for delinquency and default,pursuant to 18 U.S.C. § 3612(g).

App. 39

: The court determined that the defendant does nothave the ability to pay interest and it is orderedthat:

: the interest requirement is waived for the Q fine: restitution.

Q the interest requirement for the Q fine Q restitution, is modified as follows:

* Findings for the total amount of losses are requiredunder Chapters 109A, 110, 110A, and 113A of Title18 for offenses committed on or after September 13,1994 but before April 23, 1996.

ADDITIONAL TERMS FOR CRIMINALMONETARY PENALTIES

Fine Bases on a review of the defendant’s financial conditionas set forth in the presentence report, the Court findsthat the defendant does not have the ability to pay afine. The Court waives the fine in this case.

Special Assessment The defendant shall pay to the United States a specialassessment of $3,200.00, which shall be dueimmediately.

Restitution The defendant shall pay restitution in the followingamount: $98,265.78 plus 50% of the net proceeds fromthe sale of the defendant’s personal residence (namely,7254 Forestwood Drive, Independence, CuyahogaCounty, Ohio - Permanent Parcel Number 563-11-038).Such restitution shall be paid to Cuyahoga County,Ohio, through the Clerk of the U.S. District Court.

App. 40

Restitution is due and payable immediately.Restitution payments to be forwarded to CuyahogaCounty, c/o Cuyahoga County Administrator, 1219Ontario St., 4th Floor, Cleveland, Ohio 44113. [Also seeterms contained in final order of forfeiture, Doc. No.954.]

The Court waives the interest requirement in this case.

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay,payment of the total criminal monetary penalties is dueas follows:

A Q Lump sum payment of $ due immediately,balance due

Q not later than , orQ in accordance Q C, Q D, Q E, or Q F, below; or

B Q Payment to begin immediately (may becombined with Q C, Q D, or Q F below); or

C Q Payment in equal (e.g., weekly, monthly,quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g.,30 or 60 days) after the date of this judgment; or

D Q Payment in equal (e.g., weekly, monthly,quarterly) installments of $ over a period of (e.g., months or years), to commence (e.g.,30 or 60 days) after release from imprisonmentto a term of supervision; or

E Q Payment during the term of supervised releasewill commence within (e.g., 30 or 60 days)

App. 41

after release from imprisonment. The court willset the payment plan based on an assessment ofthe defendant’s ability to pay at that time; or

F : Special instructions regarding the payment ofcriminal monetary penalties:: A special assessment of $3200.00 is due in fullimmediately as to count(s) 1-9, 11-29, 34-37PAYMENT IS TO BE MADE PAYABLE ANDSENT TO THE CLERK, U.S. DISTRICTCOURT.

Q After the defendant is released fromimprisonment, and within 30 days of thecommencement of the term of supervisedrelease, the probation officer shall recommend arevised payment schedule to the Court to satisfyany unpaid balance of the restitution. The Courtwill enter an order establishing a schedule ofpayments.

Unless the court has expressly ordered otherwise, ifthis judgment imposes imprisonment, payment ofcriminal monetary penalties is due duringimprisonment. All criminal monetary penalties, exceptthose payments made through the Federal Bureau ofPrisons’ Inmate Financial Responsibility Program, aremade to the clerk of the court.

The defendant shall receive credit for all paymentspreviously made toward any criminal monetarypenalties imposed.

Q Joint and Several

Defendant and Co-Defendant Names Case Numbers(including defendant number), Total Amount, Joint

App. 42

and Several Amount, and corresponding payee, ifappropriate:

Q The defendant shall pay the cost of prosecution.

Q The defendant shall pay the following court cost(s):

: The defendant shall forfeit the defendant’s interestin the following property to the United States:(See Attachment A)

Payments shall be applied in the following order:(1) assessment, (2) restitution principal, (3) restitutioninterest, (4) fine principal, (5) fine interest,(6) community restitution, (7) penalties, and (8) costs,including cost of prosecution and court costs.

ATTACHMENT A (RE FORFEITURE) TO JUDGMENT IN A CRIMINAL CASE

DEFENDANT: JAMES C. DIMORA CASE NUMBER: 1:10cr00387-001 DISTRICT: NORTHERN DISTRICT OF OHIO

The defendant shall forfeit the defendant’s interest inthe following property to the United States:

Forfeiture is ordered as set forth in the Final Order ofForfeiture. The following properties are finally forfeitedto the United States, and no right, title, or interestshall exist in any other party:

Defendant Dimora’s 50% interest in 7254 ForestwoodDrive, Independence, Cuyahoga County, Ohio(Permanent Parcel Number 563-11-038).

OPERS (Ohio Public Employees Retirement System)Money Purchase Account - $98,265.78.

App. 43

Ohio State jersey in a 38” x 30” frame with B. Wellsand #28 inscribed thereon, seized on July 28, 2008,pursuant to the execution of federal search warrants.

Flat Screen TV, serial #LE80770038, seized on July 28,2008, pursuant to the execution of federal searchwarrants.

Kitchenaid Ice Maker, serial #ET4701483, seized onJuly 28, 2008, pursuant to the execution of federalsearch warrants.

Aerial GIS-type mapping photo seized on July 28, 2008,pursuant to the execution of federal search warrants.