CINCINNATI — Almost exactly five months after a jury convicted former Cincinnati City Councilman P.G. Sittenfeld on charges of public corruption, he was back in the same federal courtroom on Monday armed with a new set of high-powered attorneys asking for a new trial and acquittal, while also setting the stage for his appeal.
Legal experts have long predicted that Sittenfeld's fate would be decided by higher courts, regardless of the jury's conviction. And for nearly two hours, U.S. District Court Judge Douglas Cole allowed his attorneys lay to out the legal issues that may ultimately come before the Sixth U.S. Circuit Court of Appeals next year.
"This case has not been under-litigated," Cole said, as he left the bench without issuing a ruling. His comment brought chuckles from the roughly two dozen spectators in the courtroom, who were mostly media, lawyers and Sittenfeld supporters.
One of Sittenfeld's new attorneys, James Burnham, a partner at the Washington, D.C. law firm, Jones Day, played a key role in overturning the public corruption conviction of former Virginia Gov. Bob McDonnell, according to the firm's website.
The U.S. Supreme Court's unanimous 2016 ruling in the McDonnell case made it harder to prosecute elected officials accused of bribery and narrowed the definition of what could be considered an "official act."
Sittenfeld has maintained that he did nothing illegal by accepting campaign donations from undercover FBI agents who were posing as developers and championing their project to redevelop a blighted downtown property into a boutique hotel because he was a pro-development politician.
Burnham focused on two key points: That Sittenfeld did not engage in a explicit quid-pro-quo, and that he did not take campaign donations in exchange for an "official act," to help the project.
Burnham repeatedly described the government's case against Sittenfeld as an over reach of the law, comparing it to high-profile convictions of elected leaders who used burner phones and demanded cash for zoning permits, in much more overt corruption cases.
"This is the most aggressive (public corruption case) that I have ever encountered," Burnham said.
After three weeks of testimony, a jury came back on July 8 with two guilty verdicts: attempted extortion and bribery against Sittenfeld.
On Monday Cole seemed reluctant to overturn that verdict.
In a series of hypothetical questions, Cole kept coming back to the same point: When jurors have ambiguous facts, they can draw their own inferences to decide a verdict — such as why Sittenfeld met with unsavory characters who were "mob adjacent," but really undercover FBI agents, to solicit campaign donations, and what Sittenfeld meant when he made several cryptic comments on recorded conversations with undercover FBI agents and cooperating witnesses.
"I'm struggling a little bit with that," Cole said.
Lawyers on both sides focused on an October 2018 recorded call between Sittenfeld and Chinedum Ndukwe, who was cooperating with the FBI. Sittenfeld, who wanted to run for mayor, asked for campaign donations in the form of “rounding up LLCs” from Ndukwe, a former Cincinnati Bengal turned real estate developer.
Sittenfeld can be heard saying, “You don’t want me to be like, hey Chin, love you but can’t.”
“So, what’s the context of this call … use your common sense,” Assistant U.S. Attorney Matthew Singer said in his closing statement. “This is a corrupt solicitation.”
Prosecutors argue that Sittenfeld's convictions should stand: “the defendant received a fair trial … there is no basis to conclude the interest of justice requires a redo,” in recent court filings.
Singer described Sittenfeld's quid pro quo as this: taking $20,000 from undercover agents posing as developers in exchange for enough votes to make their project at 435 Elm Street veto-proof from then Mayor John Cranley.
"Honestly, I can ... I can sit here and say I can deliver the votes," Sittenfeld told the undercover agent who is known as Rob, during a November 2018 meeting at a downtown condo.
On the video recording, the two then talked about how Rob can donate to Sittenfeld using multiple LLCs.
"We trust jurors to make this decision," Singer said, urging the judge not to overturn the verdict.
On the witness stand Sittenfeld maintained his innocence, saying the Convention Place Mall project at the heart of this case was a blight on downtown and he would have supported its redevelopment regardless of the donations.
“The defendant cites his own testimony as evidence that he lacked corrupt intent. But, again, the jury was free to find his testimony lacked credibility,” Singer wrote in a recent court filing. “The defendant’s willingness to meet with a corrupt businessman is evidence of corrupt intent and gave the jury reason to doubt the credibility of his innocent explanations for his conduct.”
Defense attorneys claim the government is illegally expanding corruption laws with this case, by targeting routine political behavior as somehow criminal. And Burham reminded the judge as to the U.S. Department of Justice's poor record with the U.S. Supreme Court when it comes to overturning public corruption convictions.
“The last thing our country needs right now is a massive expansion of the corruption laws. Empowering ambitious prosecutors and lay juries to impose corruption convictions on—and launch criminal prosecutions of—disfavored politicians or controversial donors on the basis of campaign contributions, ambiguous statements, imaginary “winks,” and selective quotations from recorded conversations is a recipe for constitutional trouble,” defense attorneys wrote in recent court filings.
Burnham, who criticized prosecutors for a "huge evidentiary gap," also admitted that he could not find a single case in which a trial judge had granted a motion for acquittal in a public corruption case based on a similar set of facts.
Cole did not say when he would rule on the motions. If he upholds the convictions, the next step in the legal process is to set a sentencing date likely in three to six months.
Sittenfeld, who faces several years in prison, will likely ask to remain free on bond while he appeals his convictions. But that will be up to Cole.
Sittenfeld was the third council member the FBI arrested in 2020 on public corruption charges as a result of a massive sting at City Hall involving at least three undercover FBI agents and multiple informants who secretly recorded numerous elected leaders over two years.
Former council member Tamaya Dennard pleaded guilty to honest services wire fraud for accepting $15,000 as part of a scheme to exchange her votes for money. She was released from prison earlier this year.
Former council member Jeff Pastor is awaiting trial on a 10-count indictment accusing him of taking $55,000 in bribes in exchange for votes and influence on development deals. No trial date has been set in his case.
