Robert Cordaro v. United States , 933 F.3d 232 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-1022
_____________
ROBERT C. CORDARO,
Appellant
v.
UNITED STATES OF AMERICA
____________
On Appeal from the United States District Court for the
Middle District of Pennsylvania
(No. 3-17-cv-00215)
District Judge: Honorable A. Richard Caputo
Argued: September 26, 2018
Before: AMBRO, CHAGARES, and GREENAWAY, JR.,
Circuit Judges.
(Filed: August 5, 2019)
Brian T. Kelly [ARGUED]
Charles Dell’Anno
Nixon Peabody
Exchange Place
53 State Street
Boston, MA 02109
Counsel for Appellant
Stephen R. Cerutti, II [ARGUED]
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
_____________
OPINION OF THE COURT
_____________
CHAGARES, Circuit Judge.
In 2011, Robert Cordaro was convicted of bribery,
extortion, and racketeering, along with other crimes. At his
trial, the court instructed the jury that those crimes required an
“official act.” In 2016, however, the Supreme Court clarified
what does — and does not — constitute an “official act” in
McDonnell v. United States, 136 S. Ct. 2355 (2016). Cordaro
believes that the McDonnell decision makes his conduct
noncriminal and so petitions for a writ of habeas corpus under
28 U.S.C. § 2241. The District Court correctly concluded that
Cordaro cannot show that he is actually innocent — that is, that
it is more likely than not that no reasonable juror properly
charged under McDonnell would have convicted him. We will
affirm.
2
I.
In November 2003, Cordaro and his co-defendant A.J.
Munchak were elected as two of the three county
commissioners for Lackawanna County, Pennsylvania. They
began exploiting their positions for financial gain almost right
after their terms began in January 2004, particularly with two
local engineering firms, Acker Associates and Highland
Associates.
A.
Acker Associates is a civil-engineering firm whose
principals are Ken Acker and P.J. McLaine. In 2003 and 2004,
about 30 percent of Acker Associates’ business was municipal
engineering, mostly for Lackawanna County. McLaine
testified that he actively supported Cordaro’s opponents in the
2003 campaign. When Cordaro and Munchak were elected,
McLaine was concerned about keeping Acker Associates’
current county contracts. McLaine brought those concerns to
Al Hughes, a close friend of Cordaro, who agreed to talk to
Cordaro to see if McLaine could meet with him and “do
something about it.” Joint Appendix (“J.A.”) 523 (McLaine).
Hughes arranged for McLaine to meet with Cordaro in
early 2004, telling McLaine to bring a list of the existing work
that Acker Associates did for the county. McLaine’s list
included a contract to work on the Lackawanna Watershed
2000 Program, a multi-year watershed project based on a $30
million congressional grant. McLaine testified that the grant
was in the county commissioners’ names and that they had
hired Acker Associates for the work. When work started on
the watershed project in 2003, Acker Associates brought on
3
seven new employees and bought a new truck and computer.
McLaine’s list also included contracts to work on the Main
Street Bridge in Taylor, Pennsylvania, and the Gilmartin Street
Bridge in Archbald, Pennsylvania; work for the Lackawanna
County Community Development and Redevelopment
Authority, Housing Authority, River Basin Authority, and
Valley Authority; and other work related to surveying, paving,
and mapping.
Cordaro and McLaine met in person. McLaine testified
that Cordaro told him, “I think I can let you keep that, . . . but
you have to make sure you let us know everything that’s going
on. And if we’re having fundraisers you’re going to have to
participate and support us.” J.A. 526; see also J.A. 593
(McLaine) (“So, if they have an affair, a fundraiser, that we
have to participate.”). McLaine agreed and “felt wonderful”
after the meeting. J.A. 526.
In late spring or summer 2004, McLaine received a call
from another engineering firm, CECO Associates, saying that
it was taking over the design aspects of the Taylor Bridge
contract. McLaine called Hughes, who called Cordaro. Again
Hughes set up a meeting with McLaine and Cordaro, at which
McLaine explained the phone call and argued that Acker
Associates should keep the contract. Cordaro “thought for a
few minutes and said, ‘P.J., you can keep the contract. . . . Call
CECO and tell them that you’re going to finish the project.’”
J.A. 528–29 (McLaine). McLaine “called CECO and told him
[that Acker Associates was] going to finish the project. They
said okay.” J.A. 529.
In fall 2004, McLaine got a call from the lead
consultants of the Lackawanna Watershed 2000 Program.
4
They asked to sit down with McLaine to discuss the project’s
progress and schedule. At this meeting, the consultants said
that they were considering splitting up the project and giving
parts out to other firms.
Again McLaine called Hughes, who called Cordaro.
Hughes testified that Cordaro asked him, “[d]o you think he’d
want to help, you know, supporting — supporting us —
supporting me to keep his work?” J.A. 621. Hughes
responded, “how much money would you think would be
legitimately, you know, to give for the work,” and Cordaro said
“maybe $15,000.” J.A. 621–22 (Hughes).1
After this conversation with Cordaro, Hughes told
McLaine that if he gave him $10,000 a month for Cordaro,
Hughes could guarantee that Acker Associates would keep all
of its existing work. McLaine asked whether he would lose his
work if he did not pay, and Hughes said that he probably
would. Hughes also asked whether McLaine knew the
principals of Highland Associates — he did — and whether
McLaine would convey the same arrangement to them.
McLaine agreed to call Highland Associates, but said he would
need to talk to his partner Ken Acker before Acker Associates
agreed to the payments.
1
Hughes’s testimony appears to conflate the conversation he
had with Cordaro in mid-2004 (about CECO Associates and
the Taylor Bridge project) and the one in late 2004 in which
this exchange occurred, see J.A. 619–23, but his testimony and
McLaine’s are consistent on the fact that the conversation
about payments occurred in late 2004, see J.A. 529–31, 619–
23.
5
McLaine and Ken Acker discussed the matter. Acker
asked McLaine whether they could lose their contracts if they
did not pay, and McLaine said that according to Hughes they
could. They decided that they did not want to take the chance,
given the employees they had hired and the money they had
invested because of their county contracts, especially the
watershed project. They decided to go along.
Payments began in January 2005. For the first payment,
McLaine and Acker paid themselves bonuses by check, cashed
the checks, and delivered the cash to Hughes. They paid cash
for four months and then began to pay with company and
personal checks. McLaine would meet Hughes in parking lots
and diners to make the payments. In the Acker Associates
books, McLaine would label the expenses as consulting work.
For every month from January 2005 to November 2007 (when
Cordaro lost reelection), Acker Associates paid $10,000 to
Hughes to forward to Cordaro, including one $15,000 payment
because McLaine “had gotten another . . . contract[].” J.A. 626
(Hughes).
B.
Highland Associates is an architectural-engineering
firm whose principals are Domenic Provini, Kevin Smith, and
Don Kalina.
In January 2004, as Al Hughes had requested, McLaine
called Domenic Provini about making monthly payments to
Cordaro. They met, and McLaine told Provini the same thing
that Hughes said to him: “[i]f Highland would give Al
[Hughes] $10,000 to Bob [Cordaro] they would be able to keep
all their work also.” J.A. 532 (McLaine). Provini notified his
6
partners about this “cash contributions for work” arrangement.
J.A. 714 (Kalina). At that time, they decided they did not want
to participate. Highland Associates nevertheless received new
county contracts that spring to work on a courthouse, a public
safety center, an intermodal center (an epicenter for bus, cab,
and railroad transportation), and a stadium in Lackawanna
County.
In April 2005, however, Munchak invited Don Kalina
to lunch and said, “[w]ell, you know, you talked to P.J.
McLaine and we need some cash.” J.A. 715 (Kalina). At that
point, Highland Associates had nearly $1.4 million in
outstanding accounts receivable with Lackawanna County, so
Kalina and his partners felt compelled to comply. They pooled
$10,000 apiece, and Kalina paid it to Munchak. Cordaro called
Kalina and thanked him for the contribution that afternoon or
the next morning.
In June 2005, Munchak called Kalina again with the
message that “we need some more cash.” J.A. 722 (Kalina).
The county still owed Highland Associates $1.3 million, so
Kalina and his partners still felt that they had to pay. Again
they gave $30,000 to Munchak.
In July or early August 2005, Cordaro met with James
Finan, then the chairman of the board of directors of the County
of Lackawanna Transit System (COLTS) and also the county’s
director of transportation. COLTS is a separate legal authority
from the county, with a five-person board of directors. Board
members are appointed by the county commissioners. Finan
testified that Cordaro asked him to get ahold of “the architects
on the center COLTS was building” — the intermodal center
— “and ask[] them to step aside and go forward with just
7
Highland Associates.” J.A. 791. Finan did. He contacted one
of those architects and asked if they “would mind stepping
aside from this project,” explaining that COLTS “wanted to go
forward with just one architect and that being Highland.”
J.A. 792 (Finan). Finan followed that conversation up with a
letter, dated August 5, 2005, which memorialized that COLTS
was “terminating [its] contract . . . for any further services
regarding the intermodal center” because it had “decided to go
forward with the project with only one architectural and
engineering firm, Highland Associates.” J.A. 792. The letter
called this decision a “monetary and common sense issue.”
J.A. 792. Finan testified that he “was asked to contact them
and ask[] them to step aside by Mr. Cordaro.” J.A. 793.
Cordaro was then “prominent in the negotiation” of
COLTS’s contract with Highland Associates during August
2005. J.A. 794 (Finan). In October 2005, the COLTS board
approved that contract. Two of the three voting board
members, including Finan, had been appointed by
Cordaro. Although federal law required it to solicit at least
three proposals and conduct a bidding process, the COLTS
board considered only Highland Associates’ prospective
contract.
In November 2005, Munchak again came calling on
Highland Associates for cash. Again the partners agreed to
pay. Having just received the COLTS contract, they “were
afraid that the contract would be stopped” if they did not pay
since there are “many, many areas in standard . . . contracts that
allow the owner to stop work.” J.A. 732 (Kalina). In late
November or early December 2005, Cordaro was in the
Highland Associates offices for a meeting, and Kalina gave
8
him an envelope with $30,000 cash. Cordaro “put it in his
jacket and he said, [t]hank you very much.” J.A. 727 (Kalina).
C.
Cordaro was indicted in the Middle District of
Pennsylvania in 2010. The counts relevant here are bribery in
violation of 18 U.S.C. § 666(a)(1)(B); Hobbs Act extortion in
violation of 18 U.S.C. § 1951(a); and racketeering in violation
of 18 U.S.C. § 1962(c) and (d).
Cordaro’s trial took place in June 2011. At the end, the
court instructed the jury that
• Bribery requires that Cordaro “acted
corruptly with the intent to be influenced
or rewarded in connection with official
actions taken or intended to be taken by
the defendant in his capacity as county
commissioner of Lackawanna County.”
J.A. 979.
• Hobbs Act extortion requires that
Cordaro took property knowingly and
willfully by extortion “under color of
official right,” which “means that the
public official induced, obtained,
accepted or agreed to accept a payment
to which he or she was not entitled
knowing that the payment was made in
return for taking or withholding or
influencing official acts.” J.A. 985.
9
• “The term official act includes any act
within the range of official duty of a
public official and any decision,
recommendation or action on any
question, matter, cause, suit, proceeding
or controversy which at any time may be
pending or which may by law be brought
before any public official in such public
official’s capacity.
Official acts include the decisions or
actions generally expected of the public
official. . . . [I]n addition, official action
includes the exercise of both formal and
official influence and informal official
influence. Official action also includes
a public official’s altering his or her
official acts, changing the position
which he or she would otherwise have
taken or taking actions in his or her
official capacity that he or she would not
have taken but for the scheme.”
J.A. 962. Cordaro was convicted of bribery, extortion,
racketeering, and other crimes. He was sentenced to 132
months of imprisonment, restitution, and three years of
supervised release.
D.
Cordaro appealed his conviction and sentence. This
Court affirmed all but his restitution amounts. United States v.
Munchak, 527 F. App’x 191 (3d Cir. 2013).
10
In November 2013, Cordaro moved in the trial court to
vacate his sentence under 28 U.S.C. § 2255, arguing
ineffective assistance of counsel. The court held an evidentiary
hearing and in August 2015 denied his motion, declining to
issue a certificate of appealability. Cordaro then sought a
certificate of appealability from this Court, which we denied in
April 2016.
After the Supreme Court issued its decision in
McDonnell v. United States, Cordaro applied to this Court for
authorization to file a successive habeas motion under 28
U.S.C. § 2255. We denied that application, explaining that
“Cordaro’s reliance on the Supreme Court’s decision in
McDonnell v. United States, 136 S. Ct. 2355 (2016), is
misplaced, as it did not announce a new rule of constitutional
law, but rather clarified the meaning of what constitutes an
‘official act’ under the federal bribery statute, 18 U.S.C.
§ 201.” In re Cordaro, No. 16-4156 (3d Cir. Dec. 22, 2016)
(order denying application). We did, however, “note that we
have not considered whether claims like Cordaro’s would be
viable in a 28 U.S.C. § 2241 petition.” Id.Cordaro then filed the habeas petition before us under
28 U.S.C. § 2241. After oral argument, but without an
evidentiary hearing, the Magistrate Judge determined that the
§ 2241 petition was proper because “there is a chance that
Cordaro is incarcerated for conduct that does not constitute a
crime” and “he has had no earlier opportunity to test the
legality of his detention,” but recommended that the District
Court deny Cordaro’s petition on the merits because he failed
to establish that he was actually innocent — that is, that it is
more likely than not that no reasonable juror would have
convicted him if properly instructed under McDonnell.
11
J.A. 46, 52–60. Over Cordaro’s objections, the District Court
adopted the Magistrate Judge’s recommendation and denied
his petition.
Cordaro timely appealed.
II.
The Supreme Court has held that collateral relief from
a federal criminal conviction is available under 28 U.S.C.
§ 2255 based on an intervening interpretation of a substantive
criminal statute. Davis v. United States, 417 U.S. 333, 346–47
(1974). But an intervening statutory interpretation does not
authorize a successive § 2255 motion under 28 U.S.C.
§ 2255(h). In re Dorsainvil, 119 F.3d 245, 247–48 (3d Cir.
1997). This creates a problem for a petitioner in the “unusual
circumstance” when an intervening statutory interpretation that
may render a petitioner’s conduct noncriminal comes only
after his first § 2255 motion. Id. at 251. So, we have held that
a petitioner in that “uncommon situation may resort to the writ
of habeas corpus codified under 28 U.S.C. § 2241,” id. at 248,
because the remedy provided by § 2255 is “‘inadequate or
ineffective to test the legality of [his] detention’” within the
meaning of the saving clause of § 2255(e), id. at 249 (quoting
28 U.S.C. § 2255(e)).
Two conditions must be satisfied to proceed under
§ 2241. “First, a prisoner must assert a ‘claim of “actual
innocence” on the theory that “he is being detained for conduct
that has subsequently been rendered non-criminal by an
intervening Supreme Court decision” and our own precedent
construing an intervening Supreme Court decision’” — that is,
when there has been “a change in statutory caselaw that applies
12
retroactively in cases on collateral review.” Bruce v. Warden
Lewisburg USP, 868 F.3d 170, 180 (3d Cir. 2017) (quoting
United States v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013)).
“And second, the prisoner must be ‘otherwise barred from
challenging the legality of the conviction under § 2255.’” Id.
(quoting Tyler, 732 F.3d at 246). “Stated differently, the
prisoner has ‘had no earlier opportunity to challenge his
conviction for a crime that an intervening change in substantive
law may negate.’” Id. (quoting Dorsainvil, 119 F.3d at 252).
Invoking the district court’s jurisdiction requires only that the
record supports “at least a sufficiently colorable claim” that
these conditions are met. Dorsainvil, 119 F.3d at 252.
Here, the District Court properly exercised jurisdiction
under § 2241.2 First, Cordaro asserted a colorable claim of
actual innocence on the theory that he is being detained for
conduct that was subsequently rendered noncriminal by the
2
We follow Bruce in considering this inquiry to be
jurisdictional, which no party has disputed, but note that our
Court has not analyzed whether § 2255(e) is jurisdictional
under the Supreme Court’s decision in Arbaugh v. Y & H
Corp., 546 U.S. 500 (2006), and its progeny. Our sister Courts
of Appeals that have applied Arbaugh and its progeny to
§ 2255(e) have concluded that it is jurisdictional. See United
States v. Wheeler, 886 F.3d 415, 422–26 (4th Cir. 2018);
Williams v. Warden, 713 F.3d 1332, 1340 (11th Cir. 2013).
Only the Seventh Circuit Court of Appeals has held that
§ 2255(e) is not jurisdictional, in a decision that preceded
Arbaugh. See Harris v. Warden, 425 F.3d 386, 388 (7th Cir.
2005).
13
Supreme Court’s decision in McDonnell.3 Second, Cordaro
had no earlier opportunity to challenge his conviction under
McDonnell because we denied him a certificate of
appealability on his first § 2255 motion in April 2016 and
McDonnell was not decided until June 2016.
Once satisfied it has jurisdiction over a habeas petition
under § 2241, a district court provides the petitioner “with an
opportunity to demonstrate his actual innocence.” Tyler, 732
F.3d at 253; see also id. at 246–47, 252–53. The court can hold
3
At oral argument, the Government conceded that McDonnell
applies retroactively in cases on collateral review, as it has
elsewhere, see, e.g., United States v. Ciavarella, No. 3:09-CR-
272, 2018 WL 317974, at *9 n.6 (M.D. Pa. Jan. 8, 2018) (“The
government does not dispute . . . that McDonnell is
retroactively applicable to cases on collateral review.”), aff’d,
765 F. App’x 855 (3d Cir. 2019). That concession is not
without a legal basis. Under Teague v. Lane, 489 U.S. 288(1989), new substantive rules apply retroactively in cases on
collateral review. See Bruce, 868 F.3d at 181. A “rule is
substantive rather than procedural if it alters the range of
conduct or the class of persons that the law punishes.” Schriro
v. Summerlin, 542 U.S. 348, 353 (2004). “This includes
decisions that narrow the scope of a criminal statute by
interpreting its terms . . . .” Id. at 351–52. And “a case
announces a new rule if the result was not dictated by precedent
existing at the time the defendant’s conviction became final.”
Teague, 489 U.S. at 301. A “holding is not so dictated . . .
unless it would have been ‘apparent to all reasonable jurists.’”
Chaidez v. United States, 568 U.S. 342, 347 (2013) (quoting
Lambrix v. Singletary, 520 U.S. 518, 527–28 (1997)).
McDonnell arguably satisfies these requirements.
14
an evidentiary hearing, at which the petitioner may introduce
new evidence and the Government may present additional
evidence to refute the petitioner’s claim. Id. at 253. Or the
petitioner may rest on the record as it stands. Id.
While the “Supreme Court has yet to decide whether a
prisoner can obtain habeas relief based on a freestanding claim
of actual innocence, . . . ‘the threshold showing for such an
assumed right would necessarily be extraordinarily high.’”
Bruce, 868 F.3d at 183 (quoting Herrera v. Collins, 506 U.S.
390, 417 (1993)). Our Court’s precedents instruct “that actual
innocence claims under § 2241 are to be initially tested against
the . . . actual innocence gateway standard” by which a habeas
petitioner may overcome a procedural default even without
cause and prejudice. Id. at 184 (employing the standard set
forth in Schlup v. Delo, 513 U.S. 298, 314–15 (1995)); see also
House v. Bell, 547 U.S. 518, 555 (2006) (noting that a
freestanding actual-innocence claim would require “more
convincing proof of innocence” than does the gateway
standard). When actual innocence relies on an intervening
interpretation of substantive criminal law, the actual-innocence
gateway standard requires a petitioner to show that, in light of
all the evidence, it is more likely than not that no reasonable
juror properly instructed on the intervening interpretation
would have convicted him. See Bruce, 868 F.3d at 184; see
also Tyler, 732 F.3d at 246. We have observed that the
“[f]ailure to meet the gateway standard is sufficient to reject
any hypothetical freestanding actual innocence claim.” Bruce,
868 F.3d at 184.
The District Court held that Cordaro failed to satisfy the
actual-innocence gateway standard. It reasoned that Cordaro
did not show that it was more likely than not that no reasonable
15
juror properly instructed on the meaning of “official act” under
McDonnell would have voted to convict him. Thus, it denied
his petition.
We have jurisdiction over the District Court’s final
order denying Cordaro’s petition under 28 U.S.C. §§ 1291 and
2253(a). Since the District Court did not hold an evidentiary
hearing, our review is plenary. Bruce, 868 F.3d at 183.
III.
A.
In McDonnell, the Supreme Court vacated the
convictions of former Virginia Governor Robert McDonnell
for allegedly accepting bribes from a nutritional-supplement
company to commit certain “official acts”: arranging
meetings, hosting events, contacting other government
officials, promoting the company’s product and facilitating its
relationship with government officials, and recommending that
senior government officials meet with its executives. 136 S.
Ct. at 2365–66. The Court held that “setting up a meeting,
calling another public official, or hosting an event does not,
standing alone, qualify as an ‘official act.’” Id. at 2368.
Instead, an “official act” has two statutory requirements. First,
there must be a “matter” — that is, “a ‘question, matter, cause,
suit, proceeding or controversy’ that ‘may at any time be
pending’ or ‘may by law be brought’ before a public official”
— and second, “the public official must make a decision or
take an action on that question or matter, or agree to do so.”
Id. at 2368, 2370.
16
We consider whether it is more likely than not that no
reasonable juror would have convicted Cordaro of bribery,
extortion, and racketeering if properly instructed on this
definition.4 The answer is no.
4
Neither party questions whether the Supreme Court’s
interpretation of 18 U.S.C. § 201’s definition of “official acts”
in McDonnell applies to Cordaro’s Hobbs Act extortion and
racketeering convictions. Instead “they each apply the ‘official
act’ definition from McDonnell in support of their arguments
on appeal,” and neither side “argues for an alternative
definition.” United States v. Silver, 864 F.3d 102, 116 n.67 (2d
Cir. 2017). We therefore assume that the interpretation in
McDonnell applies, even though the Court was interpreting a
different statute than the one that Cordaro was convicted of
violating and, unlike in that case, there is no evidence here that
the parties agreed at trial to rely on 18 U.S.C. § 201’s
definition.
The parties do disagree whether McDonnell applies to
Cordaro’s conviction for bribery in violation of 18 U.S.C.
§ 666. As relevant here, § 666 criminalizes agreeing to accept
anything of value “intending to be influenced or rewarded in
connection with any business, transaction, or series of
transactions of such organization, government, or agency.” Id.
§ 666(a)(1)(B). The trial court instructed the jury, however,
that this crime requires “the intent to be influenced or rewarded
in connection with official actions.” J.A. 979. Because the
court said “official actions,” Cordaro argues that McDonnell
applies. The Government responds that, if anything, the
instruction narrowed § 666 and points out that the Courts of
Appeals for the Second and Eighth Circuits have held that
McDonnell does not apply to § 666. Since we conclude that
17
First, there is evidence of a “matter”: contracts with
Lackawanna County. Both Acker Associates and Highland
Associates were repeat county contractors. Acker Associates
had contracts to work on the Lackawanna Watershed 2000
Program, the Main Street Bridge in Taylor, the Gilmartin Street
Bridge in Archbald, and more. Highland Associates had
contracts to work on the courthouse, the public safety center,
the intermodal center, and the stadium.
Entering into contracts is “a formal exercise of
governmental power” that falls “within the specific duties of
an official’s position.” McDonnell, 136 S. Ct. at 2369.
Contracts are negotiated, performed, and concluded or
terminated. It is easy to imagine any of those steps being “put
on an agenda, tracked for progress, and then checked off as
complete.” Id. And they are “focused and concrete” —
Lackawanna County does not contract for something
amorphous like “[e]conomic development,” for example, id.,
but for specific projects or services, such as “building a
wastewater treatment plant for acid mine drainage,” J.A. 521
(McLaine). Contracts are therefore like a lawsuit or
administrative proceeding and unlike “a typical meeting,
telephone call, or event arranged by a public official.”
McDonnell, 136 S. Ct. at 2368. Indeed, as we have explained,
“[t]he awarding of a [government] contract is not only akin to
an agency determination — it is an agency determination.”
United States v. Repak, 852 F.3d 230, 253 (3d Cir. 2017). It is
Cordaro fails to prove his actual innocence even under
McDonnell’s definition of “official acts,” we need not resolve
whether McDonnell in fact applies to § 666.
18
probable that some reasonable juror would conclude that the
county contracts constituted “matters” under McDonnell.
Second, it is probable that some reasonable juror would
conclude that Cordaro agreed to or did act on those matters.
Considering first Acker Associates, there is evidence
that Cordaro acted on its contracts directly. When McLaine
was worried about losing the Taylor Bridge contract, he met
with Cordaro, who told him that he could keep the full contract
and to call the other engineers and tell them so. McLaine did
and kept the contract.5
This is also evidence that Cordaro agreed to act on
Acker Associates’ contracts. At their first meeting, Cordaro
told McLaine that he would “let [Acker Associates] keep that
[existing work],” but “if we’re having fundraisers you’re going
to have to participate and support us.” J.A. 526 (McLaine).
And when McLaine was worried about losing the watershed-
project contract, Cordaro asked Hughes whether McLaine
would pay “to keep his work.” J.A. 621 (Hughes). Hughes
then told McLaine that Acker Associates could keep all of its
existing work if McLaine gave Hughes $10,000 a month for
Cordaro. The Court in McDonnell emphasized that “a public
official is not required to actually make a decision or take an
action” on the matter; “it is enough that the official agree to do
so.” 136 S. Ct. at 2370–71. “The agreement need not be
explicit, and the public official need not specify the means that
he will use to perform his end of the bargain. Nor must the
public official in fact intend to perform the ‘official act,’ so
5
And McLaine paid Cordaro extra at least once because he
“had gotten another . . . contract[].” J.A. 626 (Hughes).
19
long as he agrees to do so.” Id. at 2371. It is probable that
some reasonable juror would conclude from this evidence that
Cordaro made such an agreement.
For Highland Associates, the evidence too shows direct
action. Cordaro was prominent in the negotiation of Highland
Associates’ contract with COLTS after he told COLTS
chairman James Finan to ask the other architects working on
the intermodal center to step aside so COLTS could go forward
with just Highland Associates. It is probable that some
reasonable juror would conclude from this evidence that
Cordaro “was attempting to pressure or advise another official
on a pending matter.” Id. Both actions qualify under
McDonnell, as does “a decision or action on a qualifying step.”
Id. at 2370.
There are also the payments themselves: monthly
$10,000 payments from Acker Associates and three $30,000
payments from Highland Associates (nearly half a million
dollars in total). The Court explained in McDonnell that a jury
could “conclude that an agreement was reached if the evidence
shows that the public official received a thing of value knowing
that it was given with the expectation that the official would
perform an ‘official act’ in return.” Id. at 2371. It is probable
that some reasonable juror would conclude that had occurred
here.
Taking this evidence together, would some reasonable
juror conclude that Cordaro committed official acts as defined
by McDonnell? The answer is yes. And Cordaro must show
that it is more likely than not that no reasonable juror would
reach that conclusion. He fails to do so and thus fails to prove
his actual innocence.
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B.
Cordaro challenges this conclusion in three ways. First,
he points out that the engineering firms actually contracted
with independent governmental agencies, not the county itself.
Second, he identifies new evidence impeaching key
Government witnesses. And third, he highlights trial evidence
of routine meetings that do not constitute official acts. None
of these facts change our conclusion.
1.
First, Cordaro argues that the governmental agencies
that contracted with Acker Associates and Highland Associates
are independent legal authorities distinct from Lackawanna
County itself.
This fact does not affect whether the contracts are a
“matter” under McDonnell. In McDonnell itself, the primary
“matter” was whether researchers at Virginia’s state
universities would study a nutritional supplement. See 136 S.
Ct. at 2369–70. State universities are independent legal
authorities, and McDonnell had “limited decision-making
power in this area.” 136 S. Ct. at 2363. None of that mattered
to the Supreme Court. On the contrary, the Court specifically
explained that it “would be illegal” to agree to “pressure or
advise another official on a pending matter . . . in exchange for
a thing of value.” Id. at 2371.
Nor does this fact affect whether Cordaro made a
decision or took an action on those contracts or “agree[d] to do
so.” Id. Maybe Cordaro did not mean it when he said that he
21
would “let [Acker Associates] keep that [existing work]”
because he lacked the authority to do so. J.A. 526 (McLaine).
But under McDonnell that does not matter, “so long as he
agrees to do so.” 136 S. Ct. at 2371.
There is also evidence that in fact Cordaro was able and
intended to influence whether Acker Associates and Highland
Associates retained their contracts. Cordaro himself said that
he could: he told McLaine as much at their first meeting. And
the principals of these firms — experienced county contractors
— certainly thought he could. McLaine was worried about
Acker Associates’ work right after the election, and both firms
paid Cordaro tens of thousands of dollars. That Cordaro
solicited those payments (through Hughes and Munchak) and
accepted them (through Hughes and Munchak and on his own)
suggests that he could and intended to exert some influence in
return. See, e.g., Repak, 852 F.3d at 254 (“[The defendant’s]
continued receipt of items from those contractors further
demonstrated that he intended for such items . . . to influence
the award of [government] contracts to those contractors.”).
There is even evidence that Cordaro did influence
contracts with county agencies. Cordaro influenced the Taylor
Bridge contract, keeping the design work with Acker
Associates, and he influenced the COLTS contract, having
another architectural firm’s existing contract terminated —
precisely the risk that Acker Associates and Highland
Associates paid dearly to avoid.
In sum, whatever the chain of technical legal authority
in Lackawanna County, there is ample evidence that Cordaro
agreed to, could, and did influence who kept and lost contracts
with county entities. Again, it is probable — and indeed quite
22
likely — that some reasonable juror would conclude that
Cordaro agreed to exert that influence for cash.
In that regard, this case is much like United States v.
Repak. Repak was the executive director of a municipal
agency governed by a board of directors. 852 F.3d at 237. Like
Cordaro, Repak himself did not authorize the contracts at issue;
the board of directors did. Id. Repak, however, made
recommendations and played “a vital role in the process of
selecting” contractors. Id. Challenging his bribery and
extortion convictions on direct appeal, Repak argued that “the
facilitation of the award of those contracts is not a decision or
action ‘on’ a question or matter” under McDonnell. Id. at 254.
We rejected that argument. On the contrary, we explained, the
record proved that “Repak had the power to, and indeed did,
make recommendations . . . as to the contractors [that the
agency] hired for projects.” Id. This “evidence was sufficient
for the jury to conclude that he accepted the [gifts] knowing
that he was to use his power, i.e., the ability to provide advice,
to influence the [agency’s] awarding of contracts.” Id.
Similarly here, the record shows that Cordaro had the power
to, and indeed did, influence contracts with county agencies.
Based on this evidence, it is probable that some reasonable
juror would conclude that Cordaro committed official acts.
Our Repak decision also belies the argument that there
was no matter “pending” for Cordaro to influence because the
contracts already existed. Repak solicited items from
contractors who already had municipal contracts, and those
contractors acquiesced in Repak’s solicitations because they
felt that they would lose work if they did not. Id. at 237.
Cordaro engaged in the same conduct.
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Cordaro argues that Repak actually favors him because,
unlike the defendant there, he “was not the executive in charge
of the contract-awarding entity.” Cordaro Br. 30. We are not
persuaded. Contrary to Cordaro’s arguments, Repak was not
“in charge,” nor did he have “the ability to award contracts.”
Id. Rather, it was the board of directors that “ultimately
confer[red] contracts.” Repak, 852 F.3d at 237. The only
distinction between Repak and Cordaro, then, is that Repak
worked inside the contracting governmental agency, while
Cordaro did not. Nothing in our Repak opinion suggests that
makes a difference. Cordaro, like Repak, still had the “power
. . . to influence the [agency’s] awarding of contracts” because
of his position. Id. at 254. Even if Cordaro’s official role was
more removed from the decisionmaking, unlike Repak he was
superior to the decisionmakers — as county commissioner, he
appointed the board members, including both board members
who approved Highland Associates’ COLTS contract.
Thus, this argument does not disturb our conclusion that
it is probable that some reasonable juror would vote to convict
Cordaro under McDonnell.
2.
Second, Cordaro argues that new impeachment
evidence discredits Hughes and McLaine. After trial, both men
were indicted for fraud, and McLaine was convicted. The
parties disagree whether we can consider this evidence, but
their disagreement is immaterial since this evidence does not
disturb our conclusion. To begin, this evidence hardly bears
on the issues raised by McDonnell. A jury properly or
improperly instructed on “official acts” would assess the
credibility of Hughes and McLaine just the same.
24
But regardless, this new impeachment evidence seems
unlikely to matter to a reasonable juror’s vote. It was clear at
trial that McLaine and Hughes were corrupt. McLaine bribed
Cordaro, Hughes helped, and then McLaine labeled Hughes a
“consultant” in the books and covered his tax liability out of
pocket. The trial jury still found them credible enough to
convict Cordaro. Would no properly instructed and reasonable
juror reach that conclusion knowing McLaine and Hughes
were later indicted (and McLaine convicted) for other fraud
offenses? That does not seem more likely than not — in fact it
does not seem likely at all. So we do not find this argument
persuasive.
3.
Third, Cordaro argues that the erroneous jury
instructions allowed the jury to convict him for routine
meetings with Acker Associates and Highland Associates that
were noncriminal under McDonnell. If this were a direct
appeal of erroneous (and contemporaneously objected to) jury
instructions, we would ask whether it is clear beyond a
reasonable doubt that a rational jury properly instructed would
have found Cordaro guilty. See, e.g., United States v. Fattah,
914 F.3d 112, 155 (3d Cir. 2019); United States v. Silver, 864
F.3d 102, 119 (2d Cir. 2017). And if we concluded that “the
jury may have convicted [Cordaro] for conduct that is not
unlawful,” we would be unable to “conclude that the error in
the jury instruction was harmless beyond a reasonable doubt,”
and we would “vacate and remand the convictions.” Fattah,
914 F.3d at 155.
But this is not a direct appeal. We are not presented
with whether the jury may have convicted Cordaro for conduct
25
noncriminal under McDonnell. We are not concerned with
what the misinformed jury did, might have done, or could have
done. Instead, we are making a “probabilistic determination
about what reasonable, properly instructed jurors would do.”
Schlup, 513 U.S. at 329. And, making that determination, we
cannot conclude that “no juror, acting reasonably, would have
voted to find [Cordaro] guilty beyond a reasonable doubt.” Id.IV.
For these reasons, we will affirm the judgment of the
District Court.
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