United States v. Sittenfeld

669 F.Supp.3d 672

UNITED STATES of America, Plaintiff, v. Alexander SITTENFELD, Defendant.

Case No. 1:20-cr-142

United States District Court, S.D. Ohio, Western Division

Signed April 17, 2023

Emily N. Glatfelter, Matthew Charles Singer, Megan Gaffney Painter, U.S. Department of Justice U.S. Attorney's Office, Cincinnati, OH, for Plaintiff.

Charles Matthew Rittgers, Charles Henry Rittgers, Nicholas Dominic Graman, Rittgers & Rittgers, Lebanon, OH, Gus John Lazares, Rittgers & Rittgers, Cincinnati, OH, James Burnham, Pro Hac Vice, Thomas Hopson, Pro Hac Vice, Jones Day, Washington, DC, Michael R. Dreeben, Pro Hac Vice, O'Melveny & Myers LLP, Washington, DC, Neal Darwin Schuett, Haughey & Niehaus, LLC, Oxford, OH, for Defendant.

OPINION AND ORDER

DOUGLAS R. COLE, UNITED STATES DISTRICT JUDGE

Defendant Alexander "P.G." Sittenfeld moves this Court for acquittal (Doc. 270) and for a new trial (Doc. 271) on multiple grounds. Some are a closer call than others. Ultimately, though, the Court concludes that none is meritorious. Accordingly, as explained below, the Court DENIES both Motions.

BACKGROUND¹

Sittenfeld is a former Cincinnati City Council member. On November 18, 2020, the government indicted him on two counts each of honest services wire fraud, bribery, and attempted extortion under color of official right in connection with political fundraising activities. Generally speaking, the government claimed that Sittenfeld solicited and accepted money in exchange for agreeing to vote for and otherwise support a real estate development project that would later come before the Council. (See Doc. 3). The matter went to trial on June 21, 2022. On July 8, a jury found Sittenfeld guilty of two of the six counts. On September 30, Sittenfeld filed the instant motions. (Docs. 270, 271). The Court heard argument on the motions on December 5, 2022.

LAW AND ANALYSIS

A. Motion for Acquittal

Federal Rule of Criminal Procedure 29 permits a court to enter a judgment of acquittal if it finds the evidence "insufficient to sustain a conviction." Fed. R. Crim. P. 29. The Court views the evidence "in the light most favorable to the prosecution," asking only whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Paulus, 894 F.3d 267, 275 (6th Cir. 2018).

During its review, the Court will "not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [its] judgment for that of the jury." Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). And the evidence before the Court need not "remove every reasonable hypothesis except that of guilt." United States v. Lee, 359 F.3d 412, 418 (6th Cir. 2004). In short, the Court cannot—and will not—substitute its judgment for the jury's so long as a rational trier of fact could have reached the result that the jury did.

Against that backdrop, Sittenfeld contends the Court should grant his Motion for Acquittal for three main reasons. (See generally Doc. 270). First, he believes that the government did not adequately prove the existence of a quid pro quo. (Id. at #6875-90). Second, he believes that the government did not legally prove the existence of an agreed-upon official act. (Id. at #6890-91). And third, Sittenfeld believes that if 18 U.S.C. § 666 and § 1951 reach his conduct, each is unconstitutional. (Id. at #6891-92). The government, for its part, disagrees with each of Sittenfeld's points. (See generally Doc. 276).

1. A Rational Jury Could Have Found A Quid Pro Quo.

Start with Sittenfeld's argument that the government did not adequately prove that a quid pro quo existed. (Doc. 270, #6875-78). That requirement attaches to both counts on which the jury convicted him: Count 3 (federal funds bribery, in violation of 18 U.S.C. § 666(a)(1)(B)) and Count 4 (attempted extortion under color of official right, in violation of 18 U.S.C. § 1951). The Court's instructions made this quid pro quo requirement clear. (See Doc. 202, #3221-32).

A quid pro quo is adequately shown if Sittenfeld "obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." Evans v. United States, 504 U.S. 255, 268, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992). That quid pro quo must be "explicit" but need not be express. McCormick v. United States, 500 U.S. 257, 273, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991). Put differently, although the government need not show that the parties exchanged a precise written or oral statement of the deal, Sittenfeld must have "assert[ed] that his official conduct [would] be controlled by the terms of the promise or undertaking." Id. The Motion spends several pages reviewing the law on quid pro quos. But neither party disagrees with the law here. As the government notes in its response and as Sittenfeld noted at trial, "[e]verything comes down to what P.G. [Sittenfeld] intended." (Doc. 276, #6974; Doc. 251, #5040). That is where the parties disagree.

More specifically, the parties disagree about whether an ambiguous statement provides an adequate basis for a jury to find intent. Sittenfeld claims that the explicitness requirement "is a demanding one," (Doc. 270, #6878), and that this means that the agreement "must be unambiguous," (id. at #6879). According to Sittenfeld, so long as the underlying statements and conduct are even "susceptible to an innocuous explanation," they cannot provide the basis for criminal liability. (Id.). The government takes a different view. Starting from the proposition that "matters of intent are for the jury to consider," McCormick, 500 U.S. at 270, 111 S.Ct. 1807, the government claims that it falls to the jury to consider the allegedly ambiguous words and actions in context and determine whether they reflect an "explicit" deal. (Doc. 276, #6974).

The government has the better of this argument. According to the Sixth Circuit, "[t]he trier of fact is 'quite capable of deciding the intent with which words are spoken or actions taken as well as the reasonable construction given to them by the official and the payor." United States v. Terry, 707 F.3d 607, 614 (6th Cir. 2013). In other words, faced with ambiguity, it is the jury's job to construe the language and conduct. Only if the jury's construction is "unreasonable" could this Court intervene. So long as the facts here could reasonably be interpreted to give rise to a finding of intent to enter an explicit deal, that is enough to support the verdict on this element.

The evidence here passes that test. Perhaps the best example relates to the $10,000 contribution that Sittenfeld solicited from Chinedum Ndukwe. (Doc. 266, #6242). In a later call between Sittenfeld and Ndukwe, in which the two were discussing Ndukwe raising funds from his "network," Sittenfeld told Ndukwe, "You don't want me to be like, sorry, Chin, love you but can't." (Id., #6247). Ndukwe testified that he understood that statement as conditioning Sittenfeld's support for his project on receipt of donations. (Id. at #6247). A reasonable jury could have reached the same conclusion. The government also showed that the project did not initially have the support of Cincinnati economic development officials but that Sittenfeld, after more than one explicitly corrupt offer had been made, would "shepherd the votes." (Exh. 20D). This is nowhere near all the evidence. The record backs up those statements with hours of recordings and testimony, which the jury also heard.

Sittenfeld argued at trial and continues to argue today that the evidence "falls short of the legal line." (Doc. 270, #6881). In other words, he contends that he never took part in any quid pro quo arrangement, rejected other corrupt offers, and never intended to act illegally. But none of these arguments persuade the Court to overturn the jury's decision. To start, Sittenfeld uses the wrong standard. As noted above, he claims that, so long as there is a "plausible alternative explanation" he cannot be liable. Not so. The Court does not consider whether an alternative explanation exists or whether the jury reasonably could have acquitted on the evidence. Rather, the Court considers whether the jury's actual determination— here, that the evidence presented by the government showed Sittenfeld's guilt beyond a reasonable doubt—was a result that a rational jury could have reached. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. It was. So this argument fails.

Sittenfeld fares no better by pointing to his exchange with Ndukwe in which Ndukwe pressed for guarantees about the project. Sittenfeld said "nothing can be a quid, quid pro quo [sic]," and further observed that he "kn[e]w that's not what [Ndukwe's] saying either." (Doc. 270, #6883). But such a verbal denial does not matter; no magic words can redeem an illegal action. If a politician agrees to exchange an official act for money, it does not matter if the politician says, "Of course, this isn't a bribe and I know you don't intend it as one." The question is whether a quid pro quo exists, not whether the politician admits to—or conversely disclaims—its existence.

Finally, Sittenfeld argues that the bribe charged in the indictment relates to payments from "Rob" (an undercover FBI agent playing the role of an out-of-town developer), so Sittenfeld's comments to Ndukwe (mainly the "love you, but can't" line above) are irrelevant. Not so. The testimony at trial showed that Rob and Ndukwe were portraying Ndukwe as a sort of go-between for Rob and Sittenfeld. That is, Sittenfeld understood that Ndukwe and Rob were partnering in the real estate development project and that Ndukwe would be raising money for Sittenfeld from Rob. Thus, the jury rationally could have concluded that Sittenfeld believed his statements to Ndukwe would also make their way to Rob and provide a basis for Rob contributing to Sittenfeld's campaign.

To reiterate, none of this was a...