CINCINNATI — Ex-councilman P.G. Sittenfeld could be heading back to prison after a three-judge panel of the 6th U.S. Circuit Court of Appeals ruled against his appeal Tuesday.
Sittenfeld's appeal sought to have his public corruption conviction thrown out; the appeal process began in May 2024, and Sittenfeld has been released from jail since then, pending the outcome of the appeal.
The judges, John Bush, John Nalbandian and Eric Murphy, ruled 2-1 to uphold his conviction.
While Murphy was the lone judge to agree that Sittenfeld's conviction should be thrown out, he wasn't the only judge to note that the prosecution may have been reaching in his case.
"All the major players, except for Sittenfeld, were working for or with the government — that is, these were paid actors working to incriminate Sittenfeld," reads Nalbandian's opinion. "And despite nearly every relevant conversation being recorded, the investigation didn't yield overwhelming evidence."
The appeal focused on two specific arguments: Whether the government had presented enough evidence for a jury to reasonably rule an explicit quid pro quo had occured, and whether Sittenfeld's indictment "was constructively amended," meaning the jury was given evidence pointing to crimes outside of Sittenfeld's actual indictment.
The judges ultimately ruled that the evidence presented at trial was enough for a jury to reasonably convict Sittenfeld on bribery and extortion charges, pointing to a controversial recording of a conversation 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.”
"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.
The panel of judges hearing Sittenfeld's appeal felt the recordings were enough evidence to support the jury's verdict on both counts, according to the ruling.
"Even if some juries might disagree, that does not change the fact that Sittenfeld's conviction was not unreasonable," reads the ruling. "So, Sittenfeld's sufficiency-of-the-evidence claim fails."
Still, Murphy wrote in his opinion that, while he was concurring that Sittenfeld's conviction should be upheld, parts of his appeal did rightfully point out issues with the Hobbs Act, often used in public corruption cases.
Sittenfeld’s attorney, Yaakov Roth, warned of the widespread implications on political fundraising if the appeals court let this conviction stand. Roth, a partner at the Washington D.C. law firm of Jones Day, helped to vindicate former Virginia Governor Bob McDonnell from corruption charges.
Roth argued the government was illegally expanding corruption laws by targeting routine political behavior as somehow criminal.
"I agree with Sittenfeld that the current reading of the Hobbs Act raises First Amendment concerns," reads Murphy's opinion. "I disagree, though, that we are the right court to address the concerns. For one thing, the Supreme Court created this dilemma by adopting an ambiguous test seemingly tied to policy rather than text."
Murphy continued on to say he agreed with Bush, who ruled in favor of Sittenfeld's appeal, that there were legitimate concerns with how the case was prosecuted. Still, Murphy ruled against Sittenfeld "under the law as it exists now," with no additional clarification available from the Supreme Court.
Bush agreed with Sittenfeld's attorneys, that his case could incentivize "overzealous corruption prosecutions," and had restricted Sittenfeld's First Amendment rights.
"The majority decides that the best way to handle the task facing us — one with no precedent directly on point, a high chance of jury confusion as to what the First Amendment protects, and a high cost if the jury gets it wrong — is to do nothing," Bush wrote.
The judges also predominantly felt Sittenfeld's argument that his indictment was constructively amended was made too little too late — because he could have objected back at trial, but didn't.
Now that his appeal has failed, Sittenfeld could be ordered to return to prison immediately to serve out the rest of his sentence.
But it's not guaranteed that will happen. He also has paths forward for additional appeals, during which he could be allowed to remain out of prison like with his first appeal.
From here, Sittenfeld could choose to appeal to have the entire 6th U.S. Circuit Court of Appeals hear his case — not just a three-judge panel. Or, instead, he could choose to take his case to the U.S. Supreme Court, which hears oral arguments in fewer than 100 cases annually, less than 2% of the cases they're given, according to Steve Goodin who is an attorney, former federal prosecutor and former city councilman.
"They have total discretion on what they hear and they tend to only take the case if they think it has some sort of broader application," said Goodin.
Goodin said he initially didn't think Sittenfeld's appeal would go anywhere, because the evidence presented in trial was strong enough for a jury to convict him.
"But I do think that the new legal team that Sittenfeld brought in at the end to handle the appeal did an excellent job of laying out the constitutional issues," he said.
Ken Katkin, a law professor at Northern Kentucky University, agreed Sittenfeld's chances of having his appeal heard by the Supreme Court is slim — but Katkin said if it happened, it could go in Sittenfeld's favor, based on similar cases.
"The odds are low of getting into the Supreme Court, but to me they seem to be a little bit higher with the public corruption cases like this one," said Katkin. "There have been a series of public corruption cases lately where elected officials were convicted, their convictions were sustained on appeal by appeals courts and the U.S. Supreme Court took the cases and reversed them. That's happened about a half-dozen times in the past decade."
Once a rising political star and favorite to be Cincinnati's mayor, Sittenfeld was sentenced to spend 16 months in prison for bribery and attempted extortion. He served roughly 4 and a half months before he was released for the duration of his appeal.
Sittenfeld has maintained that he did nothing illegal by accepting $20,000 in 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.
Sittenfeld was the third council member the FBI arrested in 2020 on public corruption charges stemming from a massive sting at Cincinnati 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. A judge sentenced her to 18 months in prison and she was released in 2022.
Former council member Jeff Pastor also pleaded guilty to honest services wire fraud. Prosecutors said he took $55,000 in bribes in exchange for votes on development deals. He was sent to prison, but was released in December to serve the last seven months of his sentence either at a halfway house or home confinement.
You can read the full decision yourself below:
Sittenfeld Appeal Ruling by felicia.jordan on Scribd
