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

- 1 7

- cv

- 0 0 215 )

District Judge: Hon orable A. Richard Caputo

Argued: September 2 6 , 2018

Before: AMBRO, CHAGARES, and GREENAWAY, JR.

,

Circuit Judges

.

(Filed : August 5, 2019 )

Brian T. Kelly [ARGUED]

Charles Dell’Anno

Nixon Peabody

Exchange Place2 53 State Street

Boston, MA 021 09

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 c ourt instructed the jury that those crimes required an

“official act.” In 2016, however, the Supreme Court clarified

what does

— and does n o t

— 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

.3 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 position s 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 t o

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 Associat es did for the c ounty. 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 on4 seven new employees and bought a new truck and computer.

McLaine’s list also i ncluded contracts to work on the M ain

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 Authori ty, 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 t hat’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”

af ter 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 o f 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

consul tant s of the Lackawanna Watershed 2000 Program.5 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, “ h ow 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 c ould guarantee that Acker Associates would keep all

of its existing work. McLaine asked whether he would lose his

w ork 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 Associat es, but said he would

need to talk to his partner Ken Acker before Acker Associates

agree d 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 c onsistent on the fact that the conversation

about payments occurred in late 2004, see J.A. 529

– 31, 619

–

23.6 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 cas h

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 200 5 to November 200 7 (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 his7 partners about this “c ash contributions for work” arrangement.

J.A. 714 (Kalina). At that time, t hey 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 inter modal 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. 7 15 (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 ca lled

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 c ounty 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 c ounty, with a five

- person board of directors. Board

members are appointed by the county commissioners. Fi nan

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 just8 Highland A ssociates.” 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 Associate s.” 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. 73 2 (Kalina). In late

November or early December 2005, Cordaro was in the

Highland Associates offices for a meeting, and Kalina gave9 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

c ourt instructed the ju ry 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. 985.10 • “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 an y public official in such public

official’s capacity.

Official acts include the decisions or

actions generally expected of th e 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 se ntence. This

Court affirmed all but his restitution amounts. United States v.

Munchak

, 527 F. App’x 191 (3d Cir. 2013).11 In November 2013, Cordaro moved in the trial court to

vacate his sentence under 28 U.S.C. § 2255, arguing

ineffective assistance of c ounsel. 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 C ourt 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.

Co rdaro 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 tes t 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 inno cent

— that is, that it is

more likely than not that no reasonable juror would have

convicted him if properly instructed under McDonnell

.12 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 intervenin g 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

meanin g of the saving clause of § 2255(e)

, id. at 249 (quoting

28 U.S.C. § 2255(e)).

Two conditions must b e 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 applies13 retroacti vely in cases on collateral review.” Bruce v. Warden

Lewisburg USP , 868 F.3d 170, 180 (3d Cir. 2017) (quot ing

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 Dorsa invil , 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 non criminal 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 § 2 255(e) is jurisdictional

under the Supreme Court’s decision in Arbaugh v. Y & H

Corp. , 546 U.S. 500 (2006), and its progeny. O ur sister Courts

of Appeals that have applied Arbaugh and it s progeny to

§ 2255(e) have concluded that it is jurisdictional. See United

States v. Wheeler , 886 F.3d 415, 42 2

– 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).14 Supreme Court’s dec ision in McDonnell

. 3 Second, Cordaro

had no earlier opportunity to challenge his conviction under

McDonnell because we denied him a certificate of

appealability on h is 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, s ee, 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 crimin al 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 dicta ted

. . . 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.15 an evid entiary hearing, at which t he 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 Herr era 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

. . . ac tual innocence gateway standard ” by which a habeas

petitioner may overcome a procedural de fault 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 s how 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 reasonable16 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 governmen t

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,

callin g 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, 2370.17 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’ definiti on 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 th ough 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 w hether 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, o r 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. B ecause 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

McDonnel l does not apply to § 666. Since we conclude that18 First, there is evidence of a “matter” : contrac ts 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 Arc hbald, and more. Highland Associates had

contracts to work on the courtho use, the public safety center,

the intermodal center

, and the stadium.

Entering into contracts is “ a formal exercise of

government al 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”

—

Lack a wanna 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 lawsu it 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]h e 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 § 666.19 probable that some reasonable juror would conclude that the

county contrac ts constituted “matter s ” 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 c ould 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

act ion” on the matter; “it is enough that the official agree to do

so.” 136 S. Ct. at 237 0

– 7 1. “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 o fficial 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).20 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 ev idence 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 offic ial

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 fro m 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 w ith 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.21 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” u nder 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 matte r

. . . 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 he22 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 237 1

.

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 (throug h 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 contract ors 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 quite23 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 executiv e 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 t he 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” fo r Cordaro to influence becaus e 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.24 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] contr acts.” 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 Re pak, 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 coun ty 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 w hether 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.25 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 help ed

, and then McLaine labeled Hughes a

“consultant” in the books and cove red 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 ot her 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 object ed 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.3 d 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 “ vac ate 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 conduct26 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 de termination, 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

.