Attempted Hobbs Act extortion & federal-program bribery; Sufficiency of the evidence of an explicit quid pro quo; McCormick v United States; Evans v United States; Whether the government constructively amended the indictment

The court held that the evidence construed in the government’s favor, even though it was mostly given by government employees, was enough to convict defendant-Sittenfeld of federal-program bribery and attempted Hobbs Act extortion. It also rejected his claim that his indictment was constructively amended. A jury found that Sittenfeld, a former Cincinnati, Ohio council member, had solicited or accepted campaign donations in return for his support for a property development project. It convicted him of attempted Hobbs Act extortion and federal-program bribery, while acquitting him of other charges. On appeal, the court explained that under McCormick, “proof of a quid pro quo was a prerequisite to a conviction for extortion under the Hobbs Act.” In Evans, the Supreme Court “directly answered whether ‘passive acceptance’ of a benefit—rather than an affirmative step toward fulfillment of the quid pro quo—sufficed . . . and answered yes for someone acting ‘under color of official right,’ at least where there was evidence that the official knew that the payment was in exchange for some official action.” Under Evans and McCormick, “the ‘inducement from the official is criminal if it is express or it is implied from his words and actions, so long as he intends it to be so and the payor so interprets it.’” The court noted that it “rel[ies] on objective manifestations of intent to show a defendant’s subjective mindset.” It described the situation as Sittenfeld “accepting bogus bribes from pretend investors to aid a speculative development. But a jury could still convict him if he played along.” Contrary to his arguments, “after McCormick, the general rule remains unchanged: the government’s evidence need not rule out all reasonable, alternative hypotheses to guilt.” The court held that “explicit evidence” is not required. The government has to “prove a meeting of the minds between the parties and that the agreement must be unambiguous from their perspective. But the existence of that agreement is governed by the reasonable doubt standard and can be proved with circumstantial evidence.” The court determined that based “on all the evidence, a reasonable juror could conclude that Sittenfeld understood exactly what Rob was offering and agreed to accept a bribe . . . .” As to his claim that his indictment was constructively amended, while the court agreed there was some problems with the jury instructions, Sittenfeld had to “show more to establish a constructive amendment,” and he failed to do so. Affirmed.