Case: 18-4260 Document: 9-2 Filed: 03/27/2019 Page: 1 No. 18-4260 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JAMES C. DIMORA, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ),/(' 0DU '(%25$+ 6 +817 &OHUN ORDER James C. Dimora, a federal prisoner represented by counsel, appeals the district court’s judgment denying his motion to vacate, set aside, or correct his sentence filed pursuant to 28 U.S.C. § 2255. Dimora moves for a certificate of appealability (“COA”). See Fed. R. App. P. 22(b)(2). In 2012, a jury convicted Dimora of one count of conspiracy, in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d) (Count 1); three counts of conspiracy to commit mail fraud and honest services mail fraud, in violation of 18 U.S.C. § 1349 (Counts 2, 9 & 16); seven counts of Hobbs Act conspiracy, in violation of 18 U.S.C. § 1951 (Counts 3, 12, 14, 21, 22, 24 & 26); nine counts of violating the Hobbs Act, in violation of 18 U.S.C. § 1951 (Counts 7, 8, 11, 13, 15, 20, 23, 25 & 27); two counts of conspiracy to commit bribery concerning programs receiving federal funds, in violation of 18 U.S.C. § 371 (Counts 4 & 17); four counts of bribery concerning programs receiving federal funds, aiding and abetting, in violation of 18 U.S.C. §§ 666(a)(1)(B) & 2 (Counts 5, 6, 18 & 19); one count of conspiracy to obstruct justice, in violation of 18 U.S.C. § 371 (Count 28); one count of destruction, alteration, or falsification of records in a federal investigation, in violation of 18 U.S.C. §§ 1519 and 2 (Count 29); and four counts of filing false tax returns, in violation of 26 U.S.C. § 7206(1) (Counts 34-37). The district court sentenced Dimora to a total of 336 months of imprisonment, to be followed by Case: 18-4260 Document: 9-2 Filed: 03/27/2019 Page: 2 No. 18-4260 -23 years of supervised release. This court affirmed. United States v. Dimora, 750 F.3d 619 (6th Cir. 2014). In 2017, Dimora filed a § 2255 motion, arguing that his federal bribery convictions must be vacated in light of the Supreme Court’s decision in McDonnell v. United States, 136 S. Ct. 2355 (2016), which refined the definition of an “official act” in 18 U.S.C. § 201(a)(3). Dimora also argued that the district court erred by excluding his ethics reports, an issue which was resolved against him on direct appeal by a divided panel of this court. See Dimora, 750 F.3d at 628-30. The district court denied the motion to vacate, finding that its jury instructions sufficiently addressed the concerns raised in McDonnell. Dimora v. United States, No. 1:10CR387, 2018 WL 5255121, at *12 (N.D. Ohio Oct. 22, 2018). To the extent that its instructions were in error, the district court concluded that the error was harmless because most of the acts underlying Dimora’s convictions would still qualify as “official acts” under McDonnell, and those few that would no longer qualify would have been disregarded by a rational juror applying its instructions. Id. at *26. The district court also declined to re-assess the exclusion at trial of Dimora’s ethics reports because the issue had already been thoroughly litigated on direct appeal. Id. at *26-27. To the extent that Dimora raised additional issues in the district court that are not raised in his COA motion— including in a concurrent, pro se motion to amend his motion to vacate—such arguments are abandoned on appeal. See Jackson v. United States, 45 F. App’x 382, 385 (6th Cir. 2002). Dimora now seeks a COA on whether: (1) the district court’s jury instructions regarding an “official act” were erroneous in light of McDonnell and thus allowed the jury to convict for conduct that was not an “official act”; (2) the prejudicial effect of any instructional error “spilled over” to his convictions for mail and wire fraud and his convictions under § 666; and (3) the exclusion of his ethics reports at trial was harmless when combined with any instructional error. To obtain a COA, a petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). When the denial of a motion is based on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack Case: 18-4260 Document: 9-2 Filed: 03/27/2019 Page: 3 No. 18-4260 -3v. McDaniel, 529 U.S. 473, 484 (2000). To satisfy this standard, the applicant must demonstrate “that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327. Dimora argues that the district court’s jury instruction concerning “official acts” did not conform to the requirements of McDonnell. That case clarified the elements for honest services fraud, which requires that a defendant commit an “official act” in exchange for something of value. The Supreme Court concluded that: an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of “official act.” McDonnell, 136 S. Ct. at 2371-72. The district court found that its jury instructions sufficiently complied with these requirements. Dimora, 2018 WL 5255121, at *10-12. The district court instructed the jury: The term “official act” includes any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may be by law be brought before any public official in such official’s official capacity or in such official’s place of trust or profit. Official acts include the decisions or actions generally expected of the public official. In addition, “official action” includes the exercise of both formal official influence, such as a public official’s votes, and informal official influence, such as a public official’s influence on other public officials. The term “official act” does not include actions taken in a personal or nonofficial capacity, such as actions taken as a political party leader. R. 1044, PageID 30007-08. instructions to the jury that: In making its decision, the district court also relied upon its Case: 18-4260 Document: 9-2 Filed: 03/27/2019 Page: 4 No. 18-4260 -4(1) “bribery or kickbacks are not proved if the benefit is intended to be and is accepted as simply an . . . effort to buy favor or generalized goodwill from a public official who either has been, is, or may at some unknown, unspecified later time, in a position to act favorably on the giver’s interests”; (2) “you may consider the official action’s lawfulness, desirability, or benefit to the public welfare, just as you would any other circumstances in the case, as it may bear upon the intent of a defendant in accepting the thing of value”; and (3) “property given with the sole motive of cultivating friendship is not a bribe.” Id., PageID 30005-07. Dimora argues that the district court’s instructions permitted the jury to convict him for acts that did not fit into the McDonnell definition of “official acts.” Specifically, Dimora contends that the district court’s instructions did not inform the jury that: (1) the “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power; (2) the “official act” must involve a matter that is specific, focused, and pending, or may by law be brought before any public official; and (3) not all official conduct is an “official act,” such as setting up a meeting, talking to another official, or organizing an event. Dimora further points to various instances during trial where the government urged the jury to convict for conduct that did not fit into McDonnell’s definition of an “official act.” In these circumstances, reasonable jurists could debate whether the district court’s instructions adequately addressed the concerns outlined in McDonnell. Dimora argues that, if this court finds the jury instructions regarding “official acts” to be in error, such error extended to his convictions involving bribery concerning programs receiving federal funds, pursuant to 18 U.S.C. § 666 (Counts 4-6, 17-19), and his convictions for conspiracy to commit mail fraud and honest services mail fraud, pursuant to 18 U.S.C. § 1349 (Counts 2, 9 & 16).1 However, reasonable jurists could not debate that Dimora’s bribery convictions pursuant to § 666 are unaffected by the McDonnell decision. See United States v. Porter, 886 F.3d 562, 56566 (6th Cir. 2018). As for Dimora’s convictions for conspiracy to commit mail fraud and honest 1 Dimora presents no argument in his COA motion contesting the district court’s conclusion that Counts 1, 28 and 29 are unaffected by McDonnell. See Dimora, 2018 WL 5255121, at *9 n.8. Case: 18-4260 Document: 9-2 Filed: 03/27/2019 Page: 5 No. 18-4260 -5services mail fraud, Dimora argues that the district court gave an erroneous instruction regarding the kind of “official act” required for honest services mail fraud. But the special verdict form shows that the jury found Dimora guilty of those conspiracy charges for two independent reasons: first, because it found that Dimora conspired to commit honest mail fraud (which admittedly required an “official act”); and second, because it found that Dimora conspired to commit simple money or property fraud (which does not require an “official act”). See 18 U.S.C. §§ 1341, 1343; United States v. Frost, 125 F.3d 346, 358-59 (6th Cir. 1997). The district court thus held that any error in the instruction regarding what constitutes an “official act” did not affect these convictions. Reasonable jurists would not debate that conclusion. Dimora also argues that the evidence related to the alleged conspiracy to commit honest services mail fraud had a spillover effect on the jury’s consideration of his alleged conspiracy to commit money or property fraud. See United States v Wright, 665 F.3d 560, 576-77 (3d Cir. 2012). But Dimora raises this argument in only a few sentences. He does not explain which evidence caused prejudice, or whether any of that evidence would have been admissible anyway to support the many other charges. Thus, reasonable jurists would not debate the district court’s ruling that Dimora’s conclusory argument failed to show a prejudicial spillover effect. Regarding Dimora’s remaining federal bribery convictions, the district court conducted a count-by-count analysis, and concluded that, even if its instructions were lacking, any error was harmless because the vast majority of the acts charged in the indictment, and proven by the government at trial, established that Dimora engaged in conduct that constitutes official acts in a post-McDonnell world . . . Those few acts that would no longer pass muster under McDonnell would have been disregarded by a rational juror applying the Court’s instructions. Dimora, 2018 WL 5255121, at *26. Dimora argues that, even if his convictions are supported by evidence of conduct that would fit under McDonnell’s definition of “official acts,” the jury could have nonetheless convicted him based on actions that do not satisfy the definition. Dimora points out that some of the conduct described in McDonnell would have satisfied the definition of “official acts,” see McDonnell, 136 S. Ct. at 2365-66, but the Supreme Court nonetheless decided Case: 18-4260 Document: 9-2 Filed: 03/27/2019 Page: 6 No. 18-4260 -6that it could not find the erroneous jury instructions harmless beyond a reasonable doubt because the jury may have convicted for conduct that was not unlawful. Id. at 2375; see also United States v. Silver, 864 F.3d 102, 119 (2d Cir. 2017), cert. denied, 138 S. Ct. 738 (2018); United States v. Skelos, 707 F. App’x 733, 737-38 (2d Cir. 2017). Dimora has presented issues that could be debated by jurists of reason and are thus adequate to deserve encouragement to proceed beyond the COA stage. See Miller-El, 537 U.S. at 336. Dimora also requests a COA to reconsider this court’s divided decision on direct appeal that the exclusion of his ethics reports at trial was harmless error. See Dimora, 750 F.3d at 62830. He argues that such a reconsideration is appropriate because, if this court finds error in the district court’s jury instructions, the combined effect of the two errors could lead this court to conclude that the cumulative effect was not harmless. Because Dimora’s argument is intertwined with the jury-instruction issue, this court will also grant a COA on whether cumulative error could tip the scales away from harmless error. See, e.g., Campbell v. United States, 364 F.3d 727, 736 (6th Cir. 2004). Accordingly, the application for a COA is GRANTED on whether: (1) the district court’s jury instructions regarding an “official act” were erroneous in light of McDonnell; (2) the instructional error, if any, was harmless; and (3) the exclusion of his ethics reports at trial was still harmless when combined with any instructional error. A COA is DENIED on whether the prejudicial effect of any instructional error spilled over to his convictions for mail and wire fraud or his convictions under § 666. The Clerk’s Office is directed to issue a briefing schedule on the certified issues. ENTERED BY ORDER OF THE COURT Deborah S. Hunt, Clerk