[April 2020 Update: The Jimmy Dimora Oral Argument]
Jimmy Dimora’s 2012 trial was considered the “trial of the century” by the media in Cleveland, Ohio. But are his public-corruption convictions and 28-year sentence legitimate? In briefs to the Sixth Circuit Court of Appeals, attorney Philip Kushner and I contend they are not — we say Dimora’s convictions should be overturned.
The essence of the case turned on whether Dimora acted with criminal intent to exchange “official acts” for things of value received. In 2016 in McDonnell v. United States, the Supreme Court held that “official acts” for purposes of federal criminal law are much more limited than the Government and many courts had previously believed. As explained in our opening brief and our reply brief, this puts Dimora’s convictions into question because the jury was able to convict him for lawful conduct.
What follows is the introduction section to our opening brief, which also discusses an additional problem with the case: key evidence undermining Dimora’s alleged criminal intent was excluded from the jury.
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Introduction to Jimmy Dimora’s Opening Brief filed June 20, 2019, in Dimora v. United States, No. 18-4260, in the Sixth Circuit Court of Appeals:
James Dimora was one of three County Commissioners in Cuyahoga County, Ohio, and he was also Chair of the County Democratic Party. Over the years he received many things of value (gifts, meals, trips, etc.), as many politicians do, from constituents and friends who sought greater access to him and his influence. He did not hide this—he disclosed it on his state ethics reports each year. But the Government charged him with various bribery-related crimes, contending that he had criminal intent to secretly obtain things of value in return for actions as Commissioner. In reliance on the district court’s pre-trial ruling that the ethics reports were admissible evidence, Dimora’s counsel told the jury in opening statements that his ethics reports would show that he disclosed the things of value received and therefore did not act with criminal intent. But when it came time to show the jury the reports, the Government persuaded the court to exclude them as hearsay. The Government further told the jury, consistent with the jury instructions, that anything Dimora did as Commissioner qualified as an “official act” under the bribery laws. Not surprisingly, the jury convicted him.
On appeal, this Court held that excluding the ethics reports was error, but the Court split 2-1 regarding whether the error was harmless. In dissent, Judge Merritt explained that this error required vacating Dimora’s convictions because, had it not occurred, the jury could have concluded that Dimora lacked criminal intent and was not guilty. But the majority held that the error was harmless, stating that there was overwhelming evidence about the alleged quid pro quo arrangements—accepting money or other things of value in exchange for “official acts.”
Yet after Dimora’s convictions were affirmed, the Supreme Court held in McDonnell v. United States that the similarly overbroad definition of “official acts” as used in Dimora’s case erroneously allows jurors to convict for lawful conduct, such as merely making phone calls, arranging meetings, and the like. That is the same sort of evidence the Government told the jury was sufficient to convict Dimora. And the majority on direct appeal relied on that same overbroad definition when concluding that the evidence of “official acts” presented to the jury was sufficient to make the error in excluding the ethics reports harmless.
These errors, considered together, thus enabled the jury to convict Dimora without determining if he had criminal intent on either end of the alleged “arrangements”—whether he intended to secretly obtain things of value in return for acts as Commissioner. This is true even if there is other evidence of actual official acts he did perform—the irrefutable point is that the jury was able to convict Dimora based on nothing more than Dimora making phone calls and arranging meetings, so the jury never had to consider other evidence and grapple with whether it established guilt. In short, the jury was able to convict Dimora of lawful conduct and stop its deliberations there.
After McDonnell was decided, Dimora moved the district court to vacate his convictions under § 2255 in light of these cumulative errors. The district court denied the motion and denied a Certificate of Appealability. But this Court granted a COA, recognizing that reasonable jurists could debate the key questions presented, including whether cumulative error had a substantial influence on the verdict. Because that is indeed the effect the errors had, this Court should vacate Dimora’s convictions and remand for a trial. The instructional error invalidates all the bribery convictions, especially when combined with the ethics-report error that prevented the jury from assessing criminal intent. These errors also invalidate all convictions on the remaining counts, because they relate to the bribery convictions and similarly require a proper finding of criminal intent that never occurred.
Dimora was sentenced to 28 years in prison—effectively a life sentence. He and his family are entitled to a trial that satisfies the minimum requirements of fairness and due process, not one where a jury is instructed that it can convict for conduct that is not criminal and where key evidence regarding criminal intent is promised but then excluded. A new trial is required.
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Dimora’s full brief is available here. The Government’s brief is available here. Dimora’s reply brief is available here.