Petition for Writ of Certiorari — Matthew Borges, Petitioner v. United States

Supreme Court briefDec 22, 2025

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No. 25In the

Supreme Court of the United States

MATTHEW BORGES,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

J. A lex Little

Counsel of Record

John R. Glover

Litson PLLC

54 Music Square East,

Suite 300

Nashville, TN 37203

(615) 985-8205

alex@litson.co

December 22, 2025

120854

Counsel for Petitioner

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

The First Amendment protects soliciting for, and

contributing to, political campaigns based on policies

that a candidate agrees to take while in office. To avoid

chilling that core speech, this Court’s precedent requires

an explicit quid pro quo when the alleged “bribe” is a

contribution. Yet some courts, invoking Evans v. United

States, allow conviction on ambiguous “in return for”

evidence and “as opportunities arise” jury instructions.

The question presented is:

When alleged bribery rests solely on lawful campaign

contributions, must the government prove an explicit,

unambiguous quid pro quo conditioning an official act, or

may a conviction rest on such ambiguity?

PARTIES TO THE PROCEEDING AND

RULE 29.6 DISCLOSURE STATEMENT

Petitioner, who was the defendant and appellant below,

is Matthew Borges.

Respondent, who was the plaintiff-appellee below, is

the United States of America.

iii

LIST OF RELATED PROCEEDINGS

United States v. Matthew Borges, United States Court

of Appeals for the Sixth Circuit, Case No. 23-3566 (May

6, 2025).

United States v. Matthew Borges, United States

District Court for the Southern District of Ohio, Case

No. 1:20-cr-77 (July 30, 2020).

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PA RTIES TO THE PROCEEDING A ND

RULE 29.6 DISCLOSURE STATEMENT . . . . . . . ii

LIST OF RELATED PROCEEDINGS . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

RELEVANT STATUTORY PROVISIONS . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 4

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 4

B. Procedural Background . . . . . . . . . . . . . . . . . . . . 7

REASONS FOR GRANTING THE WRIT . . . . . . . . . 11

Table of Contents

Page

The Court Should Reaffirm that Campaign‑

Contribution Prosecutions Require an

Explicit Quid pro quo . . . . . . . . . . . . . . . . . . . . . . 11

A. Campaign fundraising and policy

promises are core First Amendment

activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. “ Ex pl ic it ” i n t h i s sett i ng must

mean unambiguous and not simply

whatever a jury might infer from

ambiguous exchanges . . . . . . . . . . . . . . . . . 13

C. This Court should restore McCormick’s

“explicit” requirement . . . . . . . . . . . . . . . . . 15

II. If Evans Is Overturned or Clarified,

Householder’s Public‑Official Bribery

Predicates Collapse—And with Them

Borges’s Conviction for RICO Conspiracy . . . . 17

III. This case is an ideal vehicle to clarify

McCormick and Evans . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED MAY 6, 2025 . . . . . . . . . 1a

A PPEN DI X B — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E SI X T H CI RCU I T, FI LED

JULY 25, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96a

APPENDIX C — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98a

vii

TABLE OF CITED AUTHORITIES

Page

CASES

Baugh v. United States,

64 F.4th 779 (6th Cir. 2023) . . . . . . . . . . . . . . . . . 20, 24

Bouie v. City of Columbia,

378 U.S. 347 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Callanan v. United States,

881 F.2d 229, (6th Cir. 1989) . . . . . . . . . . . . . . . . . . . . 20

Carpenter v. United States,

484 U.S. 19 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Ciminelli v. United States,

598 U.S. 306 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Citizens United v. FEC,

572 U.S. 185 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Counterman v. Colorado,

600 U.S. 66 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14

Evans v. United States,

504 U.S. 255 (1992) . . . . . . . 1, 2, 3, 5, 13, 14, 15, 17, 18,

21, 22, 23, 24

FEC v. Cruz,

596 U.S. 289 (2022) . . . . . . . . . . . . . . . . . . . . . . . . 11, 22

FEC v. Wis. Right to Life, Inc.,

551 U.S. 449 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

viii

Cited Authorities

Page

H.J. Inc. v. Nw. Bell Tel. Co.,

492 U.S. 229 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

McCormick v. United States,

500 U.S. 257 (1991) . . . . . . . . . . . 1, 2, 12, 13, 14, 15, 16,

20, 21, 22, 23, 24

McCutcheon v. FEC,

572 U.S. 185 (2014) . . . . . . . . . . . . . . . . . . . . . 11, 12, 22

McDonnell v. United States,

579 U.S. 550 (2016) . . . . . . . . . . . . . . . . . . . . . . . . 16, 23

Ocasio v. United States,

578 U.S. 282 (2016) . . . . . . . . . . . . . . . . . . . . . . 2, 13, 21

Percoco v. United States,

598 U.S. 319 (2023) . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Perrin v. United States,

444 U.S. 37 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Rewis v. United States,

401 U.S. 808 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Salinas v. United States,

522 U.S. 52 (1997) . . . . . . . . . . . . . . . . . . . . . . 20, 23, 24

Silver v. United States,

141 S. Ct. 656 (2021) . . . . . . . . . . . . . . . . . . . . . 2, 13, 21

Cited Authorities

Page

Skilling v. United States,

561 U.S. 358 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Snyder v. United States,

603 U.S. 1 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

State v. Massien,

926 N.E.2d 1282 (Ohio 2010) . . . . . . . . . . . . . . . . . . . 19

United States v. Carpenter,

961 F.2d 824 (9th Cir. 1992) . . . . . . . . . . . . . . . . . 16, 19

United States v. Davis,

841 F. App’x 375 (3d Cir. 2021) . . . . . . . . . . . . . . . . . 16

United States v. Ferber,

966 F. Supp. 90 (D. Mass. 1997) . . . . . . . . . . . . . . . . . 19

United States v. Frost,

125 F.3d 346 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 19

United States v. Hansen,

599 U.S. 762 (2023) . . . . . . . . . . . . . . . . . . . . . . . . 12, 17

United States v. Kragness,

830 F.2d 842 (8th Cir. 1987) . . . . . . . . . . . . . . . . . . . . 20

United States v. Sittenfeld,

128 F.4th 752 (6th Cir. 2025) . . . . . . . . . . . . . . 2, 15, 24

Cited Authorities

Page

STATUTES

18 U.S.C. § 666 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

18 U.S.C. § 1346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

18 U.S.C. § 1951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7

18 U.S.C. § 1952 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

18 U.S.C. § 1956 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

18 U.S.C. § 1956(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

18 U.S.C. § 1957 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

18 U.S.C. § 1961 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ohio Revised Code § 2921.02 . . . . . . . . . . . . . . . . . . . . . . 7

INTRODUCTION

This case asks when a campaign contribution becomes

an illegal bribe—and that answer determines whether

Petitioner Matthew Borges’s conviction can stand.

The federal jury considering this case was told it

could find a quid pro quo bribe if Larry Householder, the

former Ohio Speaker of the House, simply knew money

was given “in return for” an act, and that any deal could

be carried out “when the opportunity presented itself.”

Those instructions supplied the “bribery” predicate for

an illegal RICO conspiracy that the lower court assumed

as valid in upholding Borges’s conviction. Here, Borges

seeks a clear rule: in the context of political contributions,

the government must prove an unambiguous this‑for‑that

exchange to convict a defendant of bribery, and it may not

rely on ambiguous political speech and fundraising.

The root of the constitutional error below can be

traced to the tension between this Court’s precedent in

McCormick v. United States and Evans v. United States.

This case asks whether, in the campaign‑contribution

setting, the law requires an explicit, unambiguous

this‑for‑that exchange for a bribery conviction, or whether

juries may convict defendants of the crime without such

a clear bargain? The former is what this Court said

in McCormick. But a concurrence in Evans—decided

the following year—watered down the clear rule in

McCormick and opened the door to the latter. There,

Justice Kennedy wrote that a quid pro quo could be

implicit as well, detectable only from subtle cues like

“winks and nods.” Evans v. United States, 504 U.S. 255,

274 (1992) (Kennedy, J., concurring in part). From there,

for over 30 years, lower courts have lacked direction on

this question, while a chorus of voices, including from

this Court, have called for the Court to revisit Evans.

See Silver v. United States, 141 S. Ct. 656, 656–57 (2021)

(Gorsuch, J., joined by Thomas, J., dissenting from denial

of certiorari) (calling on the Court to reconsider Evans);

Ocasio v. United States, 578 U.S. 282, 300 (2016) (Breyer,

J., concurring) (agreeing that Evans “may well have been

wrongly decided”); United States v. Sittenfeld, 128 F.4th

752, 772 n.8 (6th Cir. 2025) (Nalbandian, J.) (“At this point,

McCormick and Evans are nearly 35 years old and it may

be time for the Court to revisit or refine the doctrine.”);

id. at 792 (Murphy, J., concurring) (encouraging the

defendant in that case to ask the Court to “reassess the

[Hobbs] Act’s scope in light of three decades’ worth of

precedent finding campaign donations entitled to strong

First Amendment protection”); id. at 806 (Bush, J.,

dissenting) (emphasizing that “it would be helpful for the

Supreme Court to provide guidance here”).

This case presents the opportunity to revisit Evans

and nothing else. The Sixth Circuit affirmed Borges’s

conviction on a RICO‑conspiracy rationale while expressly

declining to decide whether any of the RICO predicates

other than bribery were legally valid or proven, reasoning

that RICO conspiracy does not require proof that the

defendant personally committed them. It assumed the

public‑official bribery theory was valid under Evans

and, with it, the money laundering predicate that hinges

on “bribe proceeds.” So, if the bribery predicate falls,

the proceeds disappear—and with them the laundering

predicates—leaving only two RICO conspiracy predicates

tied to Borges’s conduct: a Travel Act theory and a private

honest‑services theory. If one of those falls, which the

lower court acknowledged is a strong possibility, there

would no longer be enough predicates to sustain Borges’s

conviction.

T he quest ion present ed here is na r row a nd

case‑dispositive. Borges seeks a clear rule for the

campaign‑contribution context: the government must

prove an unambiguous this‑for‑that exchange—not guilt

based on ambiguous fundraising and political speech.

The Court should grant certiorari, reverse on the bribery

issue by restoring that unambiguous‑quid‑pro‑quo

requirement, and remand so the Sixth Circuit can decide

in the first instance whether any remaining predicates—

the Travel Act and private honest‑services theories, and

any laundering counts purporting to rest on “proceeds”—

could sustain Borges’s conviction.

The record below presents an ideal vehicle to

clarify Evans. The jury instructions are undisputed;

the timeline is uncontested; the government anchored

its case to “bribery” and told the jury it need not find

Borges committed any acts personally; and the lower

court declined to address the remaining RICO conspiracy

predicates. A targeted ruling addressing whether Evans’s

implicit quid pro quo paradigm is constitutional will bring

needed clarity to a vital area of criminal law and protect

core political speech, while leaving predicate‑specific

questions with the Sixth Circuit on remand, where they

belong.

OPINIONS BELOW

The decision of the U.S. Court of Appeals for the Sixth

Circuit affirming Borges’s conviction is reported at 137

F.4th 454 (6th Cir. 2025), and reproduced at Pet. App. 1a.

JURISDICTION

The court of appeals issued its decision on May 6,

2025. Pet. App. 1a. Petitioner filed a timely petition

for rehearing, which was denied on July 25, 2025. Pet.

App. 96a. Petitioner timely sought an extension to seek

certiorari on October 23, 2025, which was granted on

October 28, 2025, extending the time to December 22,

2025. No. 25A485. This Court has jurisdiction under 28

U.S.C. § 1254.

RELEVANT STATUTORY PROVISIONS

The federal statutory provisions at issue are 18 U.S.C.

§ 666 and § 1951. The full text of these provisions appears

in the Appendix at Pet. App. 98a.

STATEMENT OF THE CASE

A. Factual Background

In 2016, FirstEnergy Corporation, an Ohio-based

utility holding company, faced a financial crisis. Two of

its aging nuclear power plants were hemorrhaging cash,

threatening the company’s stability. Rather than pursue

market-based solutions, FirstEnergy sought a legislative

bailout in the form of a taxpayer-funded subsidy to prop

up the failing facilities. Pet. App. 2a.

Larry Householder, a veteran Ohio politician recently

returned to the state House of Representatives, emerged as

FirstEnergy’s champion. Id. According to the government’s

theory, FirstEnergy funneled approximately $60 million

through a web of 501(c)(4) entities to support Householder’s

bid for Speaker and, ultimately, to secure passage of

House Bill 6 (“HB 6”)—legislation that would create a

ratepayer-funded subsidy for clean energy generation,

primarily benefiting FirstEnergy’s nuclear plants. Id.

The government would later argue that these payments

constituted bribes—that Householder received money

“in return for his agreement to perform specific official

acts.” Pet. App. 24a. But this theory depended entirely

on Evans v. United States, 504 U.S. 255, 268 (1992). The

jury instructions allowed Householder’s conviction based

merely on his “knowing” that FirstEnergy gave money “in

return for” official action—without requiring proof that

the payments controlled his conduct or that he wouldn’t

have supported the legislation anyway. Pet. App. 11a.

HB 6 passed and was signed into law in July 2019. Id.

But the controversy was far from over. And Householder’s

fate would prove inextricably linked to that of Matthew

Borges—a minor player who entered the scene mainly

after the legislation had already passed. Id. Borges was a

lobbyist and political consultant—not a legislator, not an

energy company executive, and not an architect of HB 6.

His involvement in this story began only when opponents

of HB 6 launched a referendum campaign to repeal it.

In August 2019, a group called Ohioans Against

Corporate Bailouts (“OACB”) began efforts to place HB

6 on the ballot for voter consideration. Pet. App. 14a. Ohio

has a mechanism by which citizens may repeal legislation

by way of a voter referendum. OACB hired Advanced

Micro Targeting (“AMT”), a for-profit signature-collection

firm, to gather the requisite number of voter signatures.

Pet. App. 15a.

Borges agreed to assist in defeating the referendum

campaign. He formed a consulting company, opened a

bank account, and received over a million dollars from

Generation Now—the 501(c)(4) entity that served as

FirstEnergy’s conduit—to help fund the anti-referendum

effort. Pet. App. 3a, 11a, & 62a. The referendum’s

supporters and opponents both wanted real-time

intelligence about signature collection progress. Id. For

the anti-referendum forces, knowing how many signatures

had been collected would help them allocate resources and

assess whether the initiative would succeed. Id.

Borges knew Tyler Fehrman, a young project

manager working for AMT in Ohio. Pet. App. 15a. He

arranged to get coffee with Fehrman and offered to pay

him for signature count information—essentially, raw

data about how many signatures AMT had collected at

various points during the campaign. Id. Fehrman initially

declined. Id. But after discussing Borges’s offer with a

friend, Fehrman contacted the FBI and agreed to work

as an informant. Id.

At the FBI’s direction, Fehrman met with Borges

again days later, this time wearing a recording device.

Id. During their conversation, Borges explained that he

wanted to know how many signatures AMT had obtained.

Id. Days later, Borges gave Fehrman a check for $15,000

from his consulting company’s account. Id. He followed

up periodically, asking for updated signature counts. Id.

Fehrman offered various excuses and never provided

the data, and the entire episode proved inconsequential.

Id. Ultimately, AMT failed to collect enough signatures

to place the referendum on the ballot, so the initiative

failed. Id.

T he FBI opened a for ma l investigation into

FirstEnergy’s funding of HB 6’s passage. Id. While

Householder was the primary target, investigators also

focused on several others, including Borges.

B. Procedural Background

A federal grand jury returned a single-count

indictment charging Householder, Borges, and others

with participating in a RICO conspiracy. The indictment

alleged that these individuals formed a criminal enterprise

that engaged in public and private honest services fraud,

extortion, Travel Act violations, money laundering, and

state law bribery. Pet. App. 17a.

The indictment alleged that Householder, Borges, and

their affiliates formed an enterprise. Id. Acting on behalf

of that enterprise, the defendants conspired to engage in

a pattern of “racketeering activity” consisting of multiple

acts of seven predicate offenses. Id. Those predicates

were: (1) Public-official honest services fraud, (2) private

honest services fraud (18 U.S.C. §§ 1343, 1346); (3) Hobbs

Act extortion (18 U.S.C. § 1951); (4) a Travel Act violation

(18 U.S.C. § 1952); (5) money laundering (18 U.S.C. § 1956);

(6) engaging in monetary transactions in property derived

from specified unlawful activity (18 U.S.C. § 1957); and (7)

bribery under Ohio Revised Code § 2921.02. Id.

The allegations against Borges occupied just a

handful of paragraphs from the 43-page indictment. R.

22, PageID: 1249, 1265, 1272, 1283. According to the

indictment, Borges’s wrongdoing consisted of two acts:

(1) allowing Generation Now to use his company’s bank

account to launder approximately $1.6 million in funds to

defeat the referendum campaign, and (2) using $15,000

of those funds to bribe Fehrman for inside information

about the ballot campaign. Id. at PageID: 1281-1284.

Notably absent from the indictment: any allegation that

Borges participated in the scheme to pass HB 6, that he

personally received any of the $60 million FirstEnergy

paid to Householder before the legislation passed, or that

he held any official position giving him power to influence

legislation.

Two of Borges’s co-defendants pleaded guilty to

the RICO conspiracy charge pursuant to cooperation

ag reements w ith the government. Pet. App. 45a.

Householder and Borges proceeded to trial. The

gover n ment ’s c a se fo c u sed over whel m i ngly on

Householder’s alleged $60 million bribery scheme.

Borges’s role was peripheral—a late entrant who became

involved only after HB 6 already had passed.

The government’s trial theory against Borges rested

almost entirely on the $15,000 payment to Fehrman. The

government argued this payment violated two federal

statutes: the Travel Act (because it allegedly violated

an obscure Ohio election law) and the wire fraud statute

(because it allegedly deprived AMT of Fehrman’s “honest

services”). Pet. App. 70a. The government also argued

that Borges engaged in money laundering by allowing

Generation Now funds—that is, “bribery proceeds”—to

flow through his consulting company’s bank account.

Pet. App. 4a-5a, 9a, 91a. During closing arguments, the

government devoted ten transcript pages to discussing the

“Fehrman bribe” and only one paragraph to the money

laundering allegations. R. 238, PageID: 9467, 9480-9488,

9521. The message was clear: the government’s case

against Borges rose or fell on whether the jury believed

the Fehrman payment was made with proceeds of the

underlying bribery by FirstEnergy.

The district court instructed the jury that it could

convict Borges if it found he had agreed that either he or

another member of the conspiracy would commit at least

two racketeering acts. R. 260, PageID: 10603. The jury

returned guilty verdicts against both Householder and

Borges after a 26-day jury trial. Pet. App. 18a. The jury

did not specify which RICO predicate acts it found Borges

had committed or agreed to.

On appeal to the Sixth Circuit, Borges raised as his

primary argument that the evidence was insufficient to

support any of the charged RICO conspiracy predicates—

specifically the Travel Act and private honest services

fraud ones. The lower court affirmed Borges’s conviction

in a per curiam opinion. Pet. App. 47a. It held that because

RICO conspiracy does not require proof that the defendant

personally committed any predicate acts—only that he

agreed to facilitate a scheme involving such acts—it need

not address whether Borges’s conduct actually violated the

Travel Act or wire fraud statute. Pet. App. 57a. In other

words, it never decided whether the two RICO conspiracy

predicates unique to Borges were valid, because it upheld

the validity of the bribery predicates for Householder.

Pet. App. 64a.

Judge Thapar wrote a lengthy concurring opinion

acknowledging the “compelling arguments” Borges

raised about both the Travel Act and honest services

fraud predicates. Pet. App. 64a. He noted that Borges

“raises compelling arguments about his honest services

predicate” and that “the Supreme Court has explained

that the intangible right of honest services must be

defined with the clarity typical of criminal statutes . . . ”

Id. (internal quotation omitted). Judge Thapar ultimately

agreed with the per curiam that the court was bound by

existing precedent because that “only the Supreme Court

may overrule its decisions.” Pet. App. 23a. Critically,

Judge Thapar recognized the connection between Borges’s

conviction and Householder’s: “if the Supreme Court

revisits its bribery cases and undermines the foundation

of Householder’s conviction, Borges’s conviction is also

ripe for reconsideration.” Pet. App. 64a.

The stage is now set for this Court’s review. Borges’s

conviction is inexorably intertwined with Householder’s.

As explained herein, because the basis of Householder’s

bribery conviction must fail, the Court should grant this

petition, vacate the judgement against Borges’s, and

remand Borges’s case to the lower court.1

1. On December 22, 2025, Householder also is expected to file

a petition for writ of certiorari with this Court. The Court should

consider the cases, if the petitions are granted, in a consolidated

manner.

REASONS FOR GRANTING THE WRIT

The Court Should Reaffirm that Campaign‑

Contribution Prosecutions Require an Explicit

Quid pro quo.

Campaign fundraising and policy promises are

core First Amendment activity.

“The First Amendment has its fullest and most

urgent application precisely to the conduct of campaigns

for political office.” FEC v. Cruz, 596 U.S. 289, 302

(2022) (quotation marks omitted). Campaign donations

are a protected way to offer “support for the candidate

and his views,” to affiliate with like‑minded citizens,

and to “influence policymaking.” McCutcheon v. FEC,

572 U.S. 185, 203–04 (2014). And the everyday idiom of

campaigning—“Donate because I will do X if elected”—is

political speech at the core of the First Amendment.

The decision below nevertheless endorsed a regime

in which jurors may “infer” a corrupt bargain from

ambiguous words in precisely those campaign exchanges,

and upheld jury instructions that made a conviction turn

on whether an official “knew” a contribution was given

“in return for” an act, without requiring proof that the

payment controlled the act or that the act would not have

occurred absent the payment. Pet. App. 24a, 28a (upholding

“when the opportunity presented itself” instruction); R.

260, PageID: 10605-06 (providing that jury instruction).

As Judge Thapar cautioned in a concurrence, the district

court’s jury instructions “swept in everyday political

activity,” criminalizing scenarios where a candidate

simply asks supporters to fund a policy platform—and

even “eliminated an obvious defense: that the candidate

would’ve [taken the action] regardless of the contribution.”

Pet. App. 66a-67a (cleaned up).

The lower court’s decision cannot be squared with this

Court’s repeated guidance that laws touching political

speech must be narrowly drawn and must leave ample

“breathing room” so that lawful speech is not suppressed

alongside that which is unlawful. See, e.g., Counterman

v. Colorado, 600 U.S. 66, 75–76 (2023); United States v.

Hansen, 599 U.S. 762, 769–70 (2023); McCutcheon, 572

U.S. at 209 (holding that courts must “err on the side of

protecting political speech rather than suppressing it”

(quotation marks omitted)).

McCormick v. United States was designed to supply

that breathing room and protect campaign contributions

from being labeled briber y. 50 0 U.S. 257 (1991).

Recognizing that “campaigns must be run and financed”

and that “serving constituents and supporting legislation

that will benefit [them] is the everyday business of a

legislator,” this Court held in McCormick that bribery

prosecutions premised on campaign contributions may

proceed “only if the payments are made in return for an

explicit promise or undertaking by the official to perform

or not to perform an official act.” Id. at 272–73 (emphasis

added). That “explicit” requirement ensures that ordinary

fundraising does not become a felony based on elastic

inferences about “ingratiation and access”—realities that

“are not corruption.” McCutcheon, 572 U.S. at 192.

B. “ Ex plicit” i n this set ti ng must me a n

unambiguous and not simply whatever a jury

might infer from ambiguous exchanges.

Despite McCormick’s clear language, some lower

courts now say “explicit” does not mean “express,” and

permit convictions based on ambiguous exchanges so

long as a jury could infer a quid pro quo. Borges and

Householder are prime examples of what has happened

because of a watered-down McCormick.

The problems can be fairly traced to misreadings

of this Court’s decision in Evans. There, the Court held

that Hobbs Act extortion “under color of official right”

is satisfied when a public official “obtain[s] a payment

to which he was not entitled, knowing that the payment

was made in return for official acts,” eliminating

any inducement requirement and making fulfillment

irrelevant. Evans v. United States, 504 U.S. 255, 268

(1992). In so doing, Evans effectively collapsed extortion

into bribery, and lower courts have since used a line from a

concurrence about “winks and nods,” id. at 274 (Kennedy,

J., concurring in part), to erode McCormick’s “explicit”

quid pro quo safeguard in campaign contribution cases.

See McCormick, 500 U.S. at 272–73.

Evans has drawn sustained criticism for untethering

“official right” extortion from its text and history and

for inviting serious First Amendment and federalism

problems when applied to ordinary politics. See, e.g.,

Ocasio, 578 U.S. at 300 (Breyer, J., concurring) (Evans

“may well have been wrongly decided”); Silver, 141 S. Ct. at

656–57 (Gorsuch, J., dissenting from denial of certiorari);

Evans, 504 U.S. at 286–90 (Thomas, J., dissenting). And

Evans never grasped its own implications for a case like

this one, built solely on lawful contributions. (This is likely

because the defendant in Evans also pocketed unreported

campaign contributions. Evans, 504 U.S. at 257.)

Turning to this case, the lower court endorsed an

Evans‑style formulation for Householder’s bribery

conviction. It required only knowledge that a payment

was made “in return for” an act, coupled with “when the

opportunity presented itself” language. Pet. App. 24a;

R. 260, PageID: 10605-06. That reading is incompatible

with both McCormick and the First Amendment. When

protected campaign speech is suggested to be unlawful,

any constitutional test to evaluate its legality must be

unambiguous. Thus, an “electioneering communication”

is the “functional equivalent of express advocacy” only

if it is “susceptible of no reasonable interpretation

other than as an appeal to vote for or against a specific

candidate.” FEC v. Wis. Right to Life, Inc., 551 U.S. 449,

469–70 (2007) (plurality opinion). True‑threats doctrine

likewise demands proof that alleged threats are “clear and

unambiguous,” not plausibly subject to benign readings.

See Counterman, 600 U.S. at 75–77.

The same principle belongs here. If the government

seeks to transform a campaign contribution into a bribe—

such as the ones FirstEnergy gave Team Householder—

the jury cannot be asked to tilt at windmills; it must

find an unambiguous “this for that” exchange. Here, the

government had to show that FirstEnergy’s payment was

made, and that Householder’s promise was given, on the

explicit condition that “official conduct will be controlled

by” the payment. McCormick, 500 U.S. at 273. Anything

short of an unambiguous exchange risks criminalizing

political appeals that pervade the airways.

Consider a concrete example. A Senate candidate

campaigns on repealing the Affordable Care Act. Her

literature solicits donations: “Contribute today because

I will vote to repeal the ACA if elected.” A supporter

sends a check with a note in the memo line: “Repeal

ObamaCare!” Under Householder’s jury instructions, both

have committed a federal crime. The candidate “knows”

the donor is giving money “in return for” her promise to

vote for repeal—a “specific official action.” See Sittenfeld,

128 F.4th at 787 (Murphy, J. concurring) (posing the ACA

campaign promise hypothetical). Neither McCormick nor

Evans were ever intended to send these two individuals

to jail.

This Court should restore McCormick’s

“explicit” requirement.

The “explicit” element from McCormick was lacking

in Householder’s case. Read properly, nothing in Evans

undermined the requirement in McCormick that the

quid pro quo be explicit. The drift has come largely from

lower‑court reliance on a sentence in a concurrence

suggesting that a quid pro quo may be “implied” to avoid

evasion by “winks and nods.” Evans, 504 U.S. at 274

(Kennedy, J., concurring in part). Even if that observation

has a role where non‑speech indicia of bribery are present,

it cannot be read to license conviction for core campaign

speech based on ambiguous implications—precisely what

McCormick forbade. See 500 U.S. at 272–73.

The disarray is real, as the concurrence below

recog nized. The per cur iam opinion approved a

“knows‑in‑return‑for” instruction that Judge Thapar

warned “raises serious First Amendment issues” because

it “swept in everyday political activity” and “eliminated

an obvious defense” that an official would have acted the

same way regardless. Pet. App. 65a. Meanwhile, other

courts require proof of a “clear and unambiguous” bargain

in the campaign‑contribution-bribery setting. See, e.g.,

United States v. Carpenter, 961 F.2d 824, 827 (9th Cir.

1992); United States v. Davis, 841 F. App’x 375, 379 (3d

Cir. 2021).

A clear rule is rooted in common sense. Unambiguous

quid pro quos are bribes; everything else is politics. The

line is bright in principal and workable in practice. When

an official says (in substance): “I will take the official act

you seek if—and only if—you contribute,” the quid pro

quo is unambiguous and punishable. When a candidate

says: “I support X policy; please donate so I can win and

pursue it,” that is protected politics. The First Amendment

demands a rule that avoids “cast[ing] a pall of potential

prosecution” over the latter. McDonnell v. United States,

579 U.S. 550, 575 (2016). McCormick supplies that rule.

The instructions and approach approved below do not.

This Court should grant review to resolve the

confusion and restore McCormick’s unambiguous quid pro

quo requirement for campaign‑contribution bribery cases.

Only that rule satisfies the First Amendment’s command

to protect political speech with the clarity typical of

criminal statutes and the “breathing room” necessary to

avoid burning down the haystack to find the needle. See

Percoco v. United States, 598 U.S. 319, 328–29 (2023);

Hansen, 599 U.S. at 769–70.

II. If Evans Is Overturned or Clarified, Householder’s

Public‑Official Bribery Predicates Collapse—

And with Them Borges’s Conviction for RICO

Conspiracy.

The Sixth Circuit itself recognized that Borges’s

conspiracy conviction would be on shaky ground without

the assumption that Householder’s conviction for bribery

was constitutionally sound. Judge Thapar put it bluntly:

“if the Supreme Court revisits its bribery cases and

undermines the foundation of Householder’s conviction,

Borges’s conviction is also ripe for reconsideration.”

Pet. App. 64a. That is because the RICO enterprise’s

load‑bearing wall was the public‑official bribery theory, and

that theory relied on instructions that, as the concurrence

explained, “swept in everyday political activity” and

“eliminated an obvious defense” that an official would

have acted anyway. Pet. App. 65a. The decision below

affirmed Borges’s conviction on a narrow RICO‑conspiracy

rationale—stressing that the government need not prove

Borges personally committed any predicates—precisely

because it treated Householder’s public‑official bribery as a

given and declined to address the other RICO-conspiracy

predicates. Pet. App. 17a. If that assumption disappears,

the foundation for leaving Borges’s conviction undisturbed

disappears with it.

O nce publ ic ‑ of f ic i a l br iber y fa l l s , Borge s’s

money‑laundering predicates fall with it. The laundering

counts rested on the assumption that payments by

FirstEnergy to Generation Now were “proceeds of

specified unlawful activity”—specifically, bribe proceeds.

18 U.S.C. §§ 1956(a)(1), 1957. Eliminate the bribery and

there are no “proceeds.” See Pet. App. 40a (per curiam

acknowledging laundering sufficiency “depends on

whether the payments . . . constitute bribery proceeds”).

Snyder v. United States sharpens the point: bribes are

payments “made or agreed to before an official act in

order to influence the official with respect to that future

official act.” 603 U.S. 1, 5, 19-20 (2024). Borges’s entire

involvement was after HB 6 had already passed. Under

Snyder’s timing rule, post‑passage disbursements cannot

be bribes “in order to influence” completed official action,

and funds tied to the post‑passage referendum fight

cannot be “proceeds” of bribery.

What would remain cannot sustain the conviction—

legally or practically. For Borges’s conspiracy conviction

to stand, the government had to prove that he intended

to further an endeavor that involved two (or more)

predicate criminal acts. 18 U.S.C. § 1961; H.J. Inc. v. Nw.

Bell Tel. Co., 492 U.S. 229, 237 (1989). And, if the public

official bribery and laundering are stripped away, only

two would remain: (1) a Travel Act predicate (via Ohio’s

anti‑infiltration statute) and (2) a private honest‑services

predicate (tied to the Fehrman payment).

The government will no doubt say that both predicates

could remain valid. But both are on “shaky ground

to say the least,” as the concurrence noted. Pet. App.

69a. Because the decision below upheld the underlying

conspiracy based solely on its reading of Evans, which

is challenged here, it never examined whether Borges

actually committed either of these two predicate offenses.

If just one fails, there are no longer enough predicates

to convict him. That is why the concurrence noted that

Borges’s conviction would be “ripe for reconsideration.”

Pet. App. 64a.

Neither remaining predicate tied to Borges survives

the slightest of scrutiny. On the Travel Act, prosecutors

bootstrapped a state election rule that carries unique

administrative preconditions and “has never [been] used”

to prosecute someone. Pet. App. 70a This poses serious

federalism and fair‑notice problems. See Perrin v. United

States, 444 U.S. 37, 49–50 (1979); Rewis v. United States,

401 U.S. 808, 812 (1971); United States v. Ferber, 966

F. Supp. 90, 105–07 (D. Mass. 1997); Bouie v. City of

Columbia, 378 U.S. 347, 352 (1964). On the honest‑services

front, Skilling, Percoco, and Ciminelli require a recognized

property interest and a legally grounded fiduciary duty;

raw signature‑count data is not “confidential business

information” in the Carpenter sense; Ohio law does not

transform AMT’s project manager into a fiduciary; and

even Frost’s diluted “foreseeable economic harm” gloss is

unmet. See Skilling v. United States, 561 U.S. 358, 408–11

(2010); Percoco, 598 U.S. at 328–31; Ciminelli v. United

States, 598 U.S. 306, 315–16 (2023); Carpenter v. United

States, 484 U.S. 19, 25–27 (1987); State v. Massien, 926

N.E.2d 1282 (Ohio 2010); United States v. Frost, 125 F.3d

346, 366–69 (6th Cir. 1997).

Perhaps this is why the government did not present the

Travel Act and honest-services theories as free-standing

anchors that could carry RICO by themselves. Instead, it

presented a single, coherent story at trial: preserve HB

6 by any means, funded by FirstEnergy’s “bribes.” The

phrase “quid pro quo” was mentioned ten times during

closing. R. 238, PageID: 9483, 9522, 9546, 9552, 9572,

9584, 9587-88, 9591, 9592. And to tie it all together, the

government then told the jury it could convict Borges even

if he did “not personally commit any racketeering acts at

all” but “simply . . . agree[d] that another conspirator would

commit two acts of racketeering activity and agree[d] to

be part of the enterprise and further its efforts.” Pet. App.

57a; R. 238, PageID: 9482. In such circumstances, where

invalid and purportedly valid predicates are “inextricably

intertwined,” a general verdict cannot be saved by post

hoc “speculation or inference” that the jury “necessarily”

found two clean predicates that survive. See Baugh v.

United States, 64 F.4th 779, 782 & n.2 (6th Cir. 2023);

Callanan v. United States, 881 F.2d 229, 235 (6th Cir.

1989); United States v. Kragness, 830 F.2d 842, 861 (8th

Cir. 1987). It is the jury that must convict, not an appellate

court reconstructing a path through a compromised set

of theories.

As this record shows, the lower court affirmed

Borges’s RICO conspiracy without deciding if any

predicate offenses other than bribery were proven. But

the law of conspiracy requires an unlawful agreement to

further an endeavor which, if completed, would satisfy the

elements of a substantive offense. Salinas v. United States,

522 U.S. 52, 65 (1997). If this Court refines the elements

of “public‑official bribery” in campaign‑contribution

cases—by restoring McCormick’s unambiguous quid pro

quo requirement—the “endeavor” the jury was invited

to find here changes with it. The Court should grant

this petition, resolve the First Amendment question,

and then remand for the Sixth Circuit to address the

cascade of consequences that Judge Thapar’s concurrence

anticipated.

III. This case is an ideal vehicle to clarify McCormick

and Evans.

Several current and former Justices already have

called for this Court to reconsider Evans. From the

outset, Justice Thomas’s Evans dissent explained that the

majority decision “disregard[ed]” the “definite and wellestablished meaning” of extortion “under color of official

right.” 504 U.S. at 279 (Thomas, J., dissenting). Nearly 24

years later, Justice Breyer acknowledged that Evans “may

well have been wrongly decided.” Ocasio, 578 U.S. at 300

(Breyer, J., concurring). In recent years, Justice Gorsuch

acknowledged the chorus of demands to revisit Evans in

light of the “thoughtful criticisms” of it. Silver, 141 S. Ct. at

656–57 (Gorsuch, J., dissenting from denial of certiorari).

The pre-Evans understanding was clear: extortion

required a public official to take money “under the

pretense that the officer was entitled thereto by virtue

of his office.” McCormick, 500 U.S. at 279 (Scalia, J,

concurring). That is, the official claimed a false right to the

payment. “With bribery, in contrast, the payor knows the

recipient official is not entitled to the payment; he, as well

as the official, may be punished for the offense.” Evans, 504

U.S. at 283 (Thomas, J., dissenting). With bribery, both

parties are culpable. But the Evans majority collapsed

this distinction, creating what Justice Thomas called “a

stunning expansion of federal criminal jurisdiction into

a field traditionally policed by state and local laws.” Id.

at 290.

Since Evans, this Court repeatedly has emphasized

that campaign contributions lie at the core of protected

political speech. In Citizens United v. FEC, the Court

recognized that “a substantial if not the only reason

to make a contribution to one candidate over another

is that the candidate will respond by producing those

political outcomes the supporter favors.” 558 U.S. 310,

359 (2010) (cleaned up). In McCutcheon v. FEC, the Court

explained that representatives “can be expected to be

cognizant of and responsive to” constituent concerns, and

“[s]uch responsiveness is key to the very concept of selfgovernance through elected officials.” 572 U.S. 185, 227

(2014) (plurality opinion). Most recently, in FEC v. Cruz,

this Court reiterated that “the First Amendment requires

us to err on the side of protecting political speech rather

than suppressing it.” 596 U.S. at 308.

These decisions are irreconcilable with the lower

courts’ reading of Evans. If an official, like Householder

here, commits a federal crime whenever he “knows” a

donor is giving money “in return for” a promised official

action, then the First Amendment’s purported protection

of responsive representation becomes a trap. Every policybased solicitation becomes potential evidence of extortion.

Every contribution motivated by a candidate’s platform

becomes potential evidence of bribery.

McCormick drew the correct line by requiring proof of

an “explicit promise or undertaking” such that the official’s

conduct would be “controlled by the terms of the promise.”

500 U.S. at 273. But the jury instructions here required

only that the official “know” the payment was made “in

return for” official action. This standard undermined

McCormick’s careful distinction. It permits conviction

based merely on the official’s awareness of the donor’s

hopes or expectations—precisely what McCormick said

was insufficient.

As this Court warned in McDonnell, overbroad

corruption prosecutions could “cast a pall of potential

prosecution” over democratic discourse, causing “officials

[to] wonder whether they could respond to even the most

commonplace requests for assistance, and citizens with

legitimate concerns [to] shrink from participating.” 579

U.S. at 575. That pall has descended here.

This petition asks the Court to clarify McCormick and

Evans in the campaign‑contribution setting and, by doing

so, to overturn the quid‑pro‑quo-bribery predicate used

to sustain the conviction below. The lower court affirmed

on a RICO‑conspiracy theory while expressly declining to

decide whether any other predicate offenses were proved.

But even under Salinas, the government must prove an

agreement “to further an endeavor which, if completed,

would” satisfy a substantive offense, 522 U.S. at 65, so

the validity of the bribery predicate matters. The jury

instructions tracked Evans’s “in return for” formulation

and allowed fulfillment “when opportunity presented

itself,” without requiring the explicit, unambiguous quid

pro quo that McCormick demands. R. 260, PageID: 10594,

10605-06, 10608. This was a constitutional error that must

be corrected.

The facts and timeline are settled. Borges entered the

story only after HB 6 passed. The government presented

a single story anchored in public‑official bribery. It

hammered “quid pro quo” in closing and obtained a

general verdict without addressing whether the other

RICO conspiracy predicates were valid. The lower court

opinion then affirmed by treating Householder’s bribery

as a given and noting that the laundering counts rise or

fall on whether the payments were bribery proceeds. Pet.

App. 40a.

Borges does not ask this Court to decide the Travel

Act, honest‑services, money‑laundering, or general‑verdict

issues. He only requests that the Court find that, in the

campaign‑contribution context, McCormick requires

an unambiguous quid pro quo, clarifying that Evans

cannot be read to dispense with that requirement by

permitting conviction based merely on knowledge that

funds were given “in return for” official action or on “as

opportunities arise” formulations. With that clarification,

the appropriate disposition is to vacate and remand so the

Sixth Circuit can determine in the first instance whether

the remaining RICO predicates can sustain the conviction.

See Salinas, 522 U.S. at 65; Baugh, 64 F.4th at 782 & n.2.

But that future question need not be decided here. The

Court can, and should, address the Evans question that

drove the lower court’s decision. 2

2. The Court is set to consider a petition in the matter of

Alexander Sittenfeld aka P. G. Sittenfeld, Petitioner v. United

States, Case No. 25-49. The petition, filed on July 11, 2025, raises

an identical issue to this one. Should the Court grant certiorari in

Sittenfeld, Petitioner requests that the Court hold his petition in

abeyance while it considers that case, which would allow Petitioner

the benefit of any ruling.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

J. A lex Little

Counsel of Record

John R. Glover

Litson PLLC

54 Music Square East,

Suite 300

Nashville, TN 37203

(615) 985-8205

alex@litson.co

December 22, 2025

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED MAY 6, 2025 . . . . . . . . . 1a

A PPEN DI X B — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E SI X T H CI RCU I T, FI LED

JULY 25, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96a

APPENDIX C — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED MAY 6, 2025

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 23-3565/3566

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

LARRY HOUSEHOLDER (23-3565);

MATTHEW BORGES (23-3566),

Defendants-Appellants.

Argued: February 5, 2025

Decided and Filed: May 6, 2025

OPINION

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:20-cr-00077—Timothy S. Black, District Judge.

Before: THAPAR, NALBANDIAN, and DAVIS,

Circuit Judges.

The court delivered a PER CURIAM opinion.

THAPAR, J. (pp. 44-64), delivered a separate concurring

opinion.

Appendix A

PER CURIAM. Larry Householder was Speaker

of the Ohio House of Representatives. A jury found him

guilty of conspiring to solicit and receive almost $60

million in return for passing a billion-dollar bailout of a

failing nuclear energy company. A jury also found lobbyist

Matthew Borges guilty of playing a role in Householder’s

conspiracy. Because we find no reversible error, we affirm

their convictions.

Facts and Background

This case begins with two parties, each with a problem

in need of a solution.

On the one side, there’s La r r y Householder.

Householder was an old hand in Ohio politics: he served

in the Ohio House of Representatives for four terms in

the late 1990s and early 2000s, two of those terms in the

speaker’s chair. After a decade-long absence, Householder

decided to return to public life. In November 2016, the

citizens of Ohio’s 72nd district elected Householder to

represent them in the Ohio House of Representatives.

This time, Householder returned to the Ohio Statehouse

seeking to reclaim the speaker position. To do so, he

sought to recruit as many candidates as possible to run in

the next election and support his bid for the speakership.

On the other side, there’s FirstEnergy Corp., an

Ohio-based public utility holding company. In 2016,

FirstEnergy was in dire financial straits because one of

its wholly owned subsidiaries, FirstEnergy Solutions, ran

two failing nuclear plants. FirstEnergy Solutions was

Appendix A

“bleeding cash.” R. 194, Pg. ID 4770. So, FirstEnergy

sought a “legislative or regulatory solution[].” Id. at Pg. ID

4777. It hoped for a “guaranteed payment” to support the

failing plants. Id. at Pg. ID 4780. Put simply, FirstEnergy

sought a taxpayer-funded bailout. When a federal effort

for the bailout failed, FirstEnergy turned its attention to

Ohio. For this, FirstEnergy would need the support of the

leadership of the Ohio House, which it lacked.

Larry Householder wanted to become Speaker of the

Ohio House. And FirstEnergy wanted a legislative bailout.

A. Meetings

Householder’s bid for speaker was an ambitious

undertaking. He needed to recruit enough candidates to

run in the 2018 election who, once elected, would vote him

in as speaker. So, he hired a political strategist, Jeffrey

Longstreth, to “quarterback” the operation. R. 217, Pg.

ID 7585. But he also needed someone to finance it or, as

Longstreth called it, serve as a “main benefactor.” Id. at

Pg. ID 7630-31. Who could that be?

In November 2016, Householder bumped into

FirstEnergy CEO Chuck Jones at Game Seven of

the World Series in Cleveland. The two discussed

FirstEnergy’s “urgen[t]” need for financial help. Def.

App’x, Gov’t Ex. 212. Householder and Jones met again

two months later in Washington, D.C. There, Householder

and Longstreth joined FirstEnergy CEO Jones and Vice

President Michael Dowling for two dinners while in the

nation’s capital.

Appendix A

At these dinners, both parties laid out their problems—

and a potential solution. Householder relayed his plan to

recruit candidates and win the speaker position. And

FirstEnergy executives outlined their need for a legislative

bailout. Dowling told Longstreth that FirstEnergy was

“going to be very supportive” of Householder’s bid for

speaker, and that Longstreth needed to set up a 501(c)(4)

entity so that Householder could receive “undisclosed and

unlimited contributions.” R. 217, Pg. ID 7636. Householder

didn’t ask many questions at these dinners; it appeared to

Longstreth that “he already knew pretty much everything

that was being said.” Id. at Pg. ID 7639. After the D.C. trip,

FirstEnergy pledged a million dollars to Householder’s

speaker bid.

Before FirstEnergy could send the money, Householder

needed somewhere for it to go. Following FirstEnergy’s

advice, Householder told Longstreth to set up the 501(c)

(4), which they called Generation Now. That entity meant

FirstEnergy could give Householder “unlimited money,”

as Longstreth described, and the funds “wouldn’t be

traced back” to the company. Id. at Pg. ID 7644. And

because Generation Now wasn’t a political campaign

subject to disclosure requirements, “nobody would

ever know” who was giving the funds. R. 302, Pg. ID

12340. This was the perfect setup for Householder and

Longstreth. As the latter put it, Generation Now would

be the “vehicle” to “fund everything that we were trying

to do.” R. 217, Pg. ID 7644-45.

About a month after the D.C. dinners, Householder

and Jones again discussed the proposed bailout and the

Appendix A

million dollars that Jones had promised. That same day,

Longstreth sent Dowling the wiring instructions for

Generation Now—“the organization that Chuck [Jones]

and Larry discussed.” R. 307, Pg. ID 12708. In March,

Generation Now received the first of four $250,000

installments from FirstEnergy. Another installment

arrived in May.

A few months later, in July, Longstreth texted

Dowling to ask “if there is anything we can be doing for

you guys.” Id. at Pg. ID 12710. Dowling responded, “I

know you guys are there for us.” Id.

Soon after, Longstreth met with Jones and Dowling

at a resort in West Virginia. The two sides took turns

discussing their needs. Jones brought up the failing

nuclear power plants and reiterated FirstEnergy’s need

for a “state solution”—a “bailout.” R. 217, Pg. ID 7623.

Longstreth, in turn, gave a “very detailed summary of

where we stood in the Speaker’s race” and “where we were

with our candidate recruitment.” Id. at Pg. ID 7623-24.

The FirstEnergy executives “wanted to make sure that

their donations were being well spent.” Id. at Pg. ID 7625.

After Longstreth had updated them, Jones added: “we

have to get Larry in there . . . because I know he won’t let

anything bad happen to us.” Id. at Pg. ID 7624. Longstreth

relayed this conversation to Householder.

A few days later, Longstreth followed up with

Dowling “regarding the next donation installment.” R.

307, Pg. ID 12712. Like clockwork, another $250,000 from

FirstEnergy showed up in the Generation Now account.

Appendix A

FirstEnergy wired the final $250,000 of the initial milliondollar pledge in December 2017.

B. The 2018 Campaign

In the lead-up to the 2018 House election, Householder

used FirstEnergy’s money to amass political power.

FirstEnergy, in turn, was cultivating a loyal ally in the

Ohio Statehouse.

Householder spent FirstEnergy’s money on Generation

Now infrastructure, such as office space, staff, and

consultants. And he paid for various personal expenses,

including to settle an Alabama lawsuit.

Householder also dedicated time and resources to

recruiting loyal candidates to run for the House and

support his speaker bid. His priority was to ensure that

they “would be loyal and vote” for him. R. 217, Pg. ID 7653.

While Longstreth identified which candidates to support,

Householder had the “final say” in terms of whether they

could be counted on. Id. at Pg. ID 7654. Householder then

spent the FirstEnergy money on the candidates he had

recruited.1 Householder called his political machine “Team

Householder.” Id.

W h i le F i r st Ene r g y w a s ba n k r ol l i ng Te a m

Householder, FirstEnergy Solutions went bankrupt. After

1. Householder also funneled money from Generation Now

into several other 501(c)(4) entities that, in turn, spent on these

candidates.

Appendix A

failing to get a bailout from Householder’s predecessor,

FirstEnergy Solutions hired a lobbyist named Juan

Cespedes to figure out a path forward. Cespedes’ “first

order of business” was to put the right leadership in place

in the Ohio Statehouse. R. 211, Pg. ID 6763-64.

The race for speakership was “most pivotal” to

FirstEnergy Solutions. Id. at Pg. ID 6756. Cespedes knew

that Householder had a “close political relationship” with

FirstEnergy, and that he was “very, very good on our

issue.” Id. at Pg. ID 6756-57. So, Cespedes obtained a list

of the Team Householder candidates and contributed to

their campaigns.

With the 2018 election in sight, Householder (via

Generation Now) continued to receive money from

FirstEnergy. In the spring, for example, after a series

of calls between Householder and Dowling, FirstEnergy

paid Generation Now $400,000. In the summer, Generation

Now received another half a million from FirstEnergy.

Householder was grateful and sent Jones a text thanking

him. Jones was also grateful for Householder’s support

and said, “We are rooting for you and your team!” R. 302,

Pg. ID 12348. Householder replied, “I’m rooting for you

as well . . . we are on [the] same team.” Id.

Meanwhile, FirstEnergy Solutions’ lobbyists were

meeting with Householder to give him a better sense of

the company’s needs. Cespedes, for example, met with

Householder in August 2018 to “explain to him what our

issues were” and discuss a solution. R. 211, Pg. ID 6767.

Bob Klaffky, another FirstEnergy Solutions lobbyist,

Appendix A

accompanied Cespedes. Cespedes recounted that

Householder already knew all about “our issue,” so the

men got “granular.” Id. After the meeting, Householder

made clear “what he was expecting from FirstEnergy

Solutions going forward,” asking Klaffky for a “multiple

hundred thousand dollar contribution.” Id. at Pg. ID 6768.

Cespedes and Klaffky met with Householder again

in October 2018. They discussed the House races, which

were of “extreme importance” to FirstEnergy. Id. at

Pg. ID 6780. During the conversation, Klaffky slid a

$400,000 check across the table to Householder. Klaffky

emphasized: “[M]y clients care very much about our

issue.” Id. Opening the check, Householder exclaimed,

“well, yes, they do.” Id. at Pg. ID 6781. The men then

discussed what Householder could do for FirstEnergy if

he were elected speaker.

FirstEnergy’s decision to hand Householder the check

while they discussed the bailout legislation was intentional.

As Cespedes put it, “we were trying to establish the fact

that . . . our support was specifically tied to the legislation.”

Id. at Pg. ID 6786.

But Team Householder was blow ing through

cash faster than FirstEnergy could write checks. So,

Householder and Longstreth arranged yet another

meeting with the FirstEnergy executives. They discussed

potential races that the Team Householder candidates

could lose, which would have been “very bad for the

whole plan.” R. 217, Pg. ID 7665. Jones’s reaction? “I’ll

help you with whatever you need.” Id. Jones didn’t need

to give a reason for his blanket support. “Everybody

Appendix A

there” knew that it stemmed from his desire to receive

a “bailout for the[] nuclear power plants.” Id. at Pg. ID

7665-66. FirstEnergy soon wired another half million to

a Householder-affiliated entity.

Soon after, Cespedes asked Householder’s manager,

Longstreth, if Householder was available to meet.

Cespedes had another $100,000 check to give Householder,

and Cespedes wanted to “tie the contributions directly

back to our issue.” R. 211, Pg. ID 6790. But Householder

was traveling, so Cespedes left the check with Longstreth

and a message for Householder to call the FirstEnergy

Solutions president. Cespedes “wanted to make sure that

[Householder] understood where, in fact, the money was

coming from.” Id. at Pg. ID 6791.

Throughout this process, FirstEnergy coordinated

with Householder through a lobbyist named Neil Clark,

who styled himself as Householder’s “proxy.” Id. at Pg. ID

6834. Clark called FirstEnergy “the bank.” R. 302, Pg. ID

12438. It was an “unlimited” source of money, and Team

Householder could turn to it anytime its funds dwindled.

Id. at Pg. ID 12453.

All told, the FirstEnergy faucet poured $1.4 million

into Generation Now in 2018, as well as half a million more

into other Householder-affiliated entities.

C. Goals Achieved

The bargain paid off. All but one of the Team

Householder candidates won their primaries. Once

10a

Appendix A

elected, those representatives all voted for Householder,

who became Speaker in January 2019. Householder texted

Jones that evening: “Thank you for everything.” R. 307,

Pg. ID 12798. FirstEnergy also reaped its reward. In

his first speech to the new session, Speaker Householder

declared his intention to create an energy-generation

subcommittee. FirstEnergy was thrilled. It became a

“matter of when, not if,” the bailout legislation would be

introduced. R. 211, Pg. ID 6801. As Cespedes reflected:

“That 500k investment seems very wise right now . . . this

is a good day.” R. 303, Pg. ID 12644. Or as Klaffky put it:

“High risk, high reward.” Id.

Once elected, Householder “ went to war” for

FirstEnergy. R. 302, Pg. ID 12423. To start, he created

a subcommittee filled with many Team Householder

representatives. A nd over the next few months,

FirstEnergy helped draft bailout legislation. Cespedes

would pick up hard copies of the latest version and handdeliver them to FirstEnergy executives. The executives

then would “edit, rewrite,” and give the bill back to

Cespedes to return to Householder’s office. R. 211, Pg.

ID 6807-08. Householder and FirstEnergy used this

courier system because they wanted no trace of the draft

legislation changing hands. This happened a dozen times.

In April 2019, Team Householder members introduced

the bailout legislation, known as House Bill 6, in the Ohio

House.

As part of this effort, FirstEnergy retained a lobbyist

named Matthew Borges as a consultant. Borges had

11a

Appendix A

known Cespedes (one of the FirstEnergy lobbyists who

previously met with Householder), and Cespedes had kept

Borges in the loop about his efforts to get a bailout deal.

So, when the legislative session kicked into gear, Cespedes

and FirstEnergy employed Borges’s help—asking Borges

to identify legislators that needed to be persuaded and to

suggest language for the bill.

The bill soon encountered opposition. No matter—

Householder’s operation kicked in to shut it down. After

seeing a negative ad, Householder told Jones: “I hope

[FirstEnergy Solutions] is ready for a fight because the

first shot was fired at us tonight. . . . Nobody screws

with my members.” R. 302, Pg. ID 12388. Meanwhile,

FirstEnergy had retained a media consulting company

to persuade Ohioans of the merits of House Bill 6. But

Householder’s right-hand man, Longstreth, told them to

fire the consultant. He demanded FirstEnergy put the

money into Generation Now “if [they] expected to . . .

have continued support” of the bailout legislation. R. 211,

Pg. ID 6811-12. Longstreth made clear that these were

“the Speaker’s wishes.” Id. at Pg. ID 6813. FirstEnergy

Solutions “had no choice.” Id. at Pg. ID 6815. Team

Householder “were the ones that were going to initiate

[and] pass our legislation.” Id.

Over the next two months, FirstEnergy turned the

faucet back on, sending approximately $15 million into

Generation Now. Householder and his team used the funds

to run ads supporting House Bill 6. In return for the $15

million, FirstEnergy enjoyed “the full support of the

Speaker.” Id. at Pg. ID 6817. As Jones told Householder,

12a

Appendix A

“I would say you are a bargain—not cheap.” R. 302, Pg.

ID 12392.

Householder’s support, though costly, had its rewards.

The state House and Senate passed House Bill 6, and the

governor signed it into law in July 2019. FirstEnergy

received a $1.3 billion bailout, which included a fixed

revenue stream of $20 to $50 million a year through 2024

for three of FirstEnergy’s utility companies. As Jones

told Dowling, “We made a bbiiiiiiig bet and it paid off.”

Id. at Pg. ID 12406.

D. The Referendum

But “there was really no time to celebrate.” R. 211, Pg.

ID 6844. Why? Ohio has a mechanism by which citizens

may repeal legislation: a voter referendum. If Ohio citizens

collect around 265,000 signatures in support of repealing a

law, they can place the issue on the ballot for voter approval,

so long as the referendum isn’t targeting a tax. Right after

Householder passed the bailout, opponents tried to do

just that. They had 90 days to get the signatures if they

wanted to stop the bailout. FirstEnergy and Householder

were worried. But just as before the bailout, both parties

found a solution: each other.

Following the launch of the signature campaign,

Householder hopped on a call with the chairman of

FirstEnergy Solutions, John Kiani, and assured Kiani

that “he would do everything in his power” to defeat the

referendum. Id. at Pg. ID 6846. FirstEnergy was in “good

hands” with Generation Now, Householder emphasized,

13a

Appendix A

and he was even “prepared to introduce new legislation.”

Id.

Householder’s promises placated FirstEnergy. Kiani

reported to FirstEnergy Vice President Dowling that he

had a “good call” with Householder. R. 302, Pg. ID 12468.

And after Dowling himself spoke with Householder, he

texted Kiani: “I think you’re in excellent hands” given

Householder’s “personal involvement and engagement.”

Id. at Pg. ID 12466.

Soon after these conversations, tens of millions of

FirstEnergy dollars began pouring into Generation

Now. FirstEnergy and Householder kept the “same

arrangement” as before—FirstEnergy providing funds,

Generation Now managing the operation. R. 211, Pg. ID

6848-49. Between August and October 2019, Generation

Now received about $38 million from FirstEnergy and its

affiliates. If Householder needed money, he would just call

Jones and ask for it. Following one call, Cespedes texted

Longstreth, “CJ [Chuck Jones] $ is in route.” R. 307, Pg.

ID 12960. The next day, a $10,000,000 wire transfer to

Generation Now arrived from FirstEnergy.

Householder and the Generation Now team developed

a multi-pronged strategy to defeat the referendum

campaign.

First, Householder and Borges tried to cajole other

state officials to help stop the referendum. As part of

this strategy, Householder and Borges each pressured

Ohio Attorney General Dave Yost to interpret House

14a

Appendix A

Bill 6 as a “tax,” since taxes aren’t subject to referenda.

They also pressured Yost to reject the petition language

so the referendum campaign would have less time to

collect signatures. Yost initially rejected the organizers’

first attempt at a petition. But the campaign submitted

a revised petition, which Yost approved, despite more

pressure from Householder and his allies. In the end,

this delay posed a “significant impediment,” since the

campaign had only 54 days to collect the necessary

signatures. R. 216, Pg. ID 7494-95.

Second, Householder asked his staff to begin drafting

new legislation characterizing House Bill 6 as a tax that

could not be subject to a referendum. That way, if the

current bill were repealed, Householder could just pass

another bailout—one that organizers couldn’t thwart.

Soon, Householder had the “‘tax’ bill ready to go.” R. 303,

Pg. ID 12580.

Third, Householder had his political machine try

to disrupt the signature campaign, which was run by a

group called Ohioans Against Corporate Bailouts (OACB).

Borges was the leader of such efforts. He tried to make

it hard for the organizers to get signatures. For one,

Borges hired operatives to research and create media

stories about the OACB signature collectors. The idea

was to find out negative information about individual

collectors and then run ads to “discredit their efforts.” R.

212, Pg. ID 6894. Another lobbyist agreed to attempt to

“buy[] out” other signature collection firms so that OACB

wouldn’t have anyone to use. Id. at Pg. ID 6906-07. Other

Householder affiliates took to the streets, where signature

15a

Appendix A

collectors were “stalked,” “intimidated,” “harassed,” and

even “assaulted.” R. 216, Pg. ID 7497. As the CEO of one

signature-collection firm put it, “[i]t was like a war zone

out there.” Id.

As part of his efforts to defeat the signature campaign,

Borges wanted to monitor how many signatures OACB

collected so he could assess whether the initiative was

likely to succeed. As FirstEnergy recognized, this was

“the most important piece of information” at issue. R. 212,

Pg. ID 6901. But the information wasn’t publicly available.

So, Borges tried a different approach. He told

Cespedes that he knew one of the employees at AMT, the

firm OACB hired to collect the signatures. His name was

Tyler Fehrman. Borges reported that he had a “longtime relationship” with Fehrman and would be able to

“approach[]” him for information. Id. at Pg. ID 6888.

Borges thought Fehrman had inside information about

the signatures AMT collected. So, Borges asked Fehrman

to meet for coffee. At that coffee meeting, Borges told

Fehrman that he’d be able to “take[] care” of all Fehrman’s

debt, and “all he needed was information on what was

going on related to the House Bill 6 repeal.” R. 224, Pg. ID

8125-26. Fehrman replied that he needed “time to think

about it.” Id. at Pg. ID 8126. He declined Borges’s offer

later that day. Borges replied that Fehrman shouldn’t tell

anyone about their conversation.

Fehrman, shaken by the conversation, contacted the

FBI. The FBI asked Fehrman to cooperate and document

future conversations with Borges. Fehrman agreed.

16a

Appendix A

Now acting as a cooperator, Fehrman reached back out

to Borges. Over a series of conversations, Borges explained

how he conceived of the effort to defeat the referendum.

He explained that “everyone else in the universe” was

on OACB’s side. R. 303, Pg. ID 12537. But there was an

“unholy alliance” between Householder and FirstEnergy

that would let people “get fat off of” the dispute. Id. at Pg.

ID 12538. Throughout the conversations, Borges insisted

that the conduct was legal. “[D]on’t steal money from a

campaign,” he said, “set up a PAC.” Id. at Pg. ID 12539.

Borges wanted to know how many signatures AMT had

collected. He asked that Fehrman call—not email—with

the information. That way, there was “never any record” of

their interaction. Id. at Pg. ID 12540. Borges paid $15,000

for the signature count information and promised that he’d

pay $10,000 once he got the data he requested. Fehrman

never sent the data.

In the end, the referendum campaign didn’t gather

enough signatures, so the ballot initiative failed. That

day, FirstEnergy w ired Generation Now another

$3,000,000. House Bill 6 remained on the books. For Jones,

Householder was “an expensive friend.” R. 307, Pg. ID

12723. But it looked like money well spent.

E. Federal Court

That all changed when a g rand jury indicted

Householder, Longstreth, Clark, Cespedes, Borges,

and Generation Now for participating in a conspiracy

in violation of the Racketeer Influenced and Corrupt

Organizations Act, more commonly known as “RICO.” 18

U.S.C. §§ 1962(c) & (d).

17a

Appendix A

To prove a RICO conspiracy charge, the government

must make four showings: (1) that an enterprise existed;

(2) that the enterprise was engaged in, or that its activities

affected, interstate commerce; (3) that the defendant was

employed by or associated with the enterprise; and (4)

that the defendant conspired to “conduct or participate,

directly or indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity.” Id.;

see also United States v. Fowler, 535 F.3d 408, 418 (6th

Cir. 2008).

Here, the indictment alleged that Householder,

Borges, and their affiliates formed an enterprise. Acting

on behalf of that enterprise, the defendants conspired to

engage in a pattern of “racketeering activity” consisting

of multiple acts of seven predicate offenses. 2 While a

substantive RICO charge requires the government to

prove these predicate offenses, the RICO conspiracy

charge doesn’t. United States v. Hills, 27 F.4th 1155, 1174

(6th Cir. 2022). Rather, the government only must show

that the defendant “intended to further an endeavor which,

if completed, would” have resulted in the commission of

two predicate offenses. Fowler, 535 F.3d at 421 (internal

quotation marks omitted).

2. The offenses were the following: Public-official honest

services fraud and private honest services fraud (18 U.S.C. §§ 1343,

1346); Hobbs Act extortion (18 U.S.C. § 1951); a Travel Act violation

(18 U.S.C. § 1952); money laundering (18 U.S.C. § 1956); engaging in

monetary transactions in property derived from specified unlawful

activity (18 U.S.C. § 1957); and bribery under Ohio Revised Code

§ 2921.02.

18a

Appendix A

Faced with these charges, Longstreth, Cespedes, and

Generation Now pled guilty. Clark sadly passed away. And

Householder and Borges went to trial. After a 26-day trial,

a jury found them guilty.

On appeal, Householder and Borges bring a number

of claims challenging their convictions. Because each

defendant’s arguments fail, we uphold their convictions.

We address Householder’s claims first, and then turn to

Borges’s.

Larry Householder

Householder brings six claims: He argues that

the jury instructions were erroneous; that there was

insufficient evidence to convict him; that the trial court

twice violated his right to counsel; that the court erred

in admitting various pieces of evidence; that the judge

was biased; and that his sentence was procedurally and

substantively unreasonable.

Jury Instructions

Householder first challenges the jury instructions. He

disputes three aspects of the instructions: the instructions

on bribery under federal law, the instructions on bribery

under Ohio law, and the instructions about a witness’s

prior inconsistent statement.

Federal-Law Bribery Instructions

Householder challenges the jury instructions that

relate to the federal-law bribery predicates for his

19a

Appendix A

RICO charge: Hobbs Act extortion and honest services

fraud. The district court’s instructions complied with the

applicable law.

The Law

At trial, the government used two federal statutes as

RICO predicates: Hobbs Act extortion (in violation of 18

U.S.C. § 1951) and honest services fraud (in violation of

18 U.S.C. §§ 1343, 1346).

We start with the required showing for extortion. The

Supreme Court has told us that extortion under color of

official right requires that a public official “receive[] a

payment in return for his agreement to perform specific

official acts.” Evans v. United States, 504 U.S. 255, 268,

112 S.Ct. 1881, 119 L.Ed.2d 57 (1992). In other words, the

Court has required the government to show a quid pro

quo agreement: that the official received a payment (the

quid) and in return agreed to take official action (the quo).

The Court’s quid pro quo requirement also applies

to honest services fraud. 3 While the Supreme Court has

never explicitly said so, the Court has limited honest

services fraud to bribery and kickbacks. Skilling v. United

States, 561 U.S. 358, 408-09, 130 S.Ct. 2896, 177 L.Ed.2d

619 (2010). And bribery has long proscribed an official

from receiving something of value “in return for” official

action. 18 U.S.C. § 201(b)(2). So, to give adequate notice

to defendants, it would make sense to apply the quid pro

3. Both parties operate under this assumption.

20a

Appendix A

quo bribery requirement to honest services fraud. See

United States v. Siegelman, 640 F.3d 1159, 1173 n.21 (11th

Cir. 2011). Further, the need for a quid pro quo is critical

in the campaign contribution context, where it “is the

corrupt agreement that transforms the exchange from a

First Amendment protected” contribution into bribery.

Id. (emphasis in original). Thus, honest services fraud

requires a quid pro quo agreement rather than a more

lenient showing of general influence. 4

Now, to show a quid pro quo, the government must

show a “meeting of the minds and specific, agreed-upon

terms.” United States v. Sittenfeld, 128 F.4th 752, 770 (6th

Cir. 2025). That agreement can be formal or informal,

written or unwritten, and express or implied. United

States v. Terry, 707 F.3d 607, 613 (6th Cir. 2013); Evans,

504 U.S. at 274, 112 S.Ct. 1881 (Kennedy, J., concurring in

part and concurring in the judgment). Regardless of the

form, the key terms of the agreement are that the bribe

payor gave the gift to obtain a promise, and the bribe

recipient made the promise to obtain the gift. Sittenfeld,

128 F.4th at 770. But that’s not all. For a gift to become a

bribe, “the parties must understand that ‘official conduct

will be controlled by’ the bribe.” Id. (quoting McCormick

4. Other circuits agree. The Ninth Circuit, for one, requires the

government to show a quid pro quo when proving honest services

fraud in the form of bribery. United States v. Inzunza, 638 F.3d 1006,

1013 (9th Cir. 2011). And several other circuits have assumed without

deciding that the quid pro quo requirement applies to honest services

fraud. See, e.g., United States v. Benjamin, 95 F.4th 60, 67-68 (2d

Cir. 2024); see also id. at 68 n.2 (collecting cases from the Eleventh,

Seventh, and D.C. Circuits).

21a

Appendix A

v. United States, 500 U.S. 257, 273, 111 S.Ct. 1807, 114

L.Ed.2d 307 (1991)). Thus, “the public official must bind

himself with some additional promise that the gift has

induced.” Id. That way, the law doesn’t criminalize giving

a gift for something an official has already promised to do.

Further, since an agreement can be informal,

unwritten, or implied, the government can prove the

existence of the quid pro quo with circumstantial evidence.

Id. at 771. Otherwise, anyone could frustrate the law by

“knowing winks and nods.” Id. at 769 (quoting Evans, 504

U.S. at 274, 112 S.Ct. 1881 (Kennedy, J., concurring in part

and concurring in the judgment)). Thus, a jury can infer

an agreement from what the participants “say, mean and

do.” Terry, 707 F.3d at 613.

In sum, Hobbs Act extortion and honest services fraud

require the government to show a quid pro quo—that

is, the official received money in exchange for a promise

to take specific official action. See Sittenfeld, 128 F.4th

at 770. There must be an unambiguous meeting of the

minds between the official and the payor. But the ways

the government can go about showing this agreement are

manifold.

The Instructions

Considering that legal framework, Householder

challenges three aspects of the federal-law bribery

instructions: (i) the instruction on the agreement

necessary to convict him; (ii) the instruction on the timing

of the payments vis-à-vis the official action; (iii) and the

22a

Appendix A

instruction on bribery by implication. Householder’s

arguments fail.

Agreement Instructions

First, Householder argues that the instructions

erroneously defined the agreement necessary for a quid

pro quo. He claims the instructions allowed the jury to

convict if he received money “knowing that the expectation

was legislation in return.” Appellant Br. at 28 (quotation

omitted). According to Householder, an “expectation” isn’t

the “agreement” necessary to show a quid pro quo. Id.

But the instructions didn’t erroneously describe

the agreement requirement. Here, the jury was told

that bribery could include either (1) “a public official’s

solicitations of things of value in exchange for performing

or agreeing to perform specific official action” or (2) “a

public official’s receipt of things of value when the public

official knows that the person who gave the thing of value

was doing so in return for the public official performing

or agreeing to perform a specific official action.” R. 237,

Pg. ID 9421.

These instructions come straight from the Supreme

Court’s holding in Evans: an official commits extortion

when he “has obtained a payment to which he was not

entitled, knowing that the payment was made in return

for official acts.” 504 U.S. at 268, 112 S.Ct. 1881. The

instruction below matched this language. It defined

extortion as an official’s receipt of something of value

“know[ing]” it was given “in return for the public

23a

Appendix A

official performing or agreeing to perform a specific

official action.” R. 237, Pg. ID 9421. An instruction can’t

misrepresent the law when it hews so closely to Supreme

Court precedent. 5

Finally, the instructions also mirrored our circuit’s

pattern jury instructions. See Sixth Circuit Pattern Jury

Instr. 17.02(1)(C) (including as an element of Hobbs Act

extortion “that the defendant knew the property was

being obtained [accepted] [taken] [received] in exchange

for an official act” (alteration in original)). That’s relevant,

because whether jury instructions track the pattern

instructions is “one factor in determining whether any

particular instruction is misleading or erroneous.” United

States v. Damra, 621 F.3d 474, 499 (6th Cir. 2010). And

here, the pattern instructions draw on the Supreme

Court’s pronouncement in Evans. This grounding in

caselaw means that we must give “deference” to the

pattern instructions—and, by extension, the agreement

instructions here. United States v. Frei, 995 F.3d 561, 565

(6th Cir. 2021).

We thus find no error in the agreement instructions.

5. Householder argues that this loose definition of bribery is

inconsistent with recent Supreme Court precedent in the campaign

finance realm. But even if it is, we’re not at liberty to disregard the

Court’s holding in Evans. If a Supreme Court precedent applies, “yet

appears to rest on reasons rejected in some other line of decisions,”

we must “follow the case which directly controls.” Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct.

1917, 104 L.Ed.2d 526 (1989). After all, only the Supreme Court may

overrule its decisions. Id.

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Appendix A

ii.

Timing Instructions

Householder’s next objection is that the court refused

to give his requested instruction that the “quid pro quo

agreement must exist at the time . . . the bribe was paid. It

cannot be formed later.” R. 237, Pg. ID 9354. Householder

maintains that the failure to give this instruction meant

that the jury could have convicted him for agreeing to

take any unspecified action at any time.

But the instructions did not leave open that possibility.

They specified that a public official “intended to exchange

a thing of value from the payor for a specific official action

. . . or that the public official knew the payor intended to

exchange the thing of value for a specific official act.” Id.

at Pg. ID 9422-23 (emphases added).

As above, these instructions parrot Evans. Evans

held that a bribery offense is completed “when the public

official receives a payment in return for his agreement to

perform specific official acts.” 504 U.S. at 268, 112 S.Ct.

1881. What was sufficient in Evans is sufficient here. Thus,

the instructions demanded the necessary link between

FirstEnergy’s payments and Householder’s conduct.

Relatedly, Householder objects to the instruction that

the jury could convict if “the public official understood

the agreement was to take a specific official action on the

payor’s behalf when the opportunity presented itself.”

Appellant Br. at 30 (quoting R. 237, Pg. ID 9423). But we

recently said this exact same “as opportunities arise”

bribery instruction was proper. Hills, 27 F.4th at 1179.

Householder cannot overcome this precedent.

25a

Appendix A

The two cases he relies on also don’t help. One upheld

the exact language he challenges. United States v. Silver,

948 F.3d 538, 558-59 (2d Cir. 2020). And the second,

United States v. Skelos, featured a far broader instruction

than the one here: it required only that the defendant

“be expected to perform official acts in exchange for . . .

property.” 988 F.3d 645, 656 (2d Cir. 2021) (quotation

omitted). Critically, this “left open the possibility that

the jury could convict even if Skelos was expected to take

official action on any question or matter in return.” Id.

(emphasis in original). The Skelos instruction had no link

to a specific official action.

All told, under any theory, Householder can’t show

error.

iii. Bribery by Implication

Householder also argues that the instructions allowed

for a conviction based on “bribery by implication.”

Appellant Br. at 31-32. Householder is right that they did.

But blackletter law holds that inferential and

circumstantial evidence may support a bribery conviction.

That is, a bribery showing can rest on “an agreement

. . . which can be formal or informal, written or oral.”

Terry, 707 F.3d at 613. To be sure, the agreement must

be “unambiguous” from the perspective of the payor

and recipient; both parties must know the terms of the

proposed arrangement. See Sittenfeld, 128 F.4th at 772

& n.8. “But the existence of that agreement is governed

by the reasonable doubt standard and can be proved with

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circumstantial evidence.” Id. at 771 (emphasis in original).

In other words, the government can point to the usual

types of evidence to show that both parties knew of an

unambiguous agreement. Id.; see also Benjamin, 95 F.4th

at 68 (joining “[e]very other circuit to have considered

th[e] question” to hold that the “explicit quid pro quo

requirement may be met by implication from the official’s

and the payor’s words and actions and need not entail an

express statement”). Householder’s challenge thus fails

as a matter of precedent.

B. State Law Bribery & Harmless Error

Next, Householder challenges the jury instructions

for the Ohio bribery charge. See Ohio Rev. Code Ann.

§ 2921.02(B). Householder argues that the jury instructions

defining Ohio bribery flout the First Amendment because

they didn’t require a quid pro quo. This showing,

Householder argues, is necessary for the government

to turn otherwise legal campaign contributions into an

illegal bribe. While this challenge has merit, any error

was harmless.

Here, the court instructed the jury that an Ohio

state bribery conviction required three findings: (1) that

a “public servant . . . knowingly solicited or accepted for

himself any valuable thing or valuable benefit;” (2) that

he “intended the valuable thing or benefit to corrupt or to

improperly influence him;” and (3) “that the corruption or

influence was with respect to the discharge of his duties

as a public servant.” R. 237, Pg. ID 9434-35.

27a

Appendix A

The Ohio bribery law, as def ined in the jury

instructions, thus criminalized less than a quid pro quo. A

contribution could be treated as illegal solely because the

official “intended the valuable thing or benefit to corrupt

or to improperly influence him.” Id.

And that’s a problem. Why? If the FirstEnergy

payments were campaign contributions, then the only

permissible ground for restricting them is to prevent

“‘quid pro quo’ corruption or its appearance.” FEC v. Cruz,

596 U.S. 289, 305, 142 S.Ct. 1638, 212 L.Ed.2d 654 (2022).

So, if the Ohio state law bribery instructions allowed for a

conviction for improper influence alone, those instructions

were erroneous.6

But erroneous jury instructions are harmless if we can

conclude, beyond a reasonable doubt, that the jury would

have convicted Householder of a RICO conspiracy anyway.

See Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827,

144 L.Ed.2d 35 (1999). Applying that standard, a jury

would have had to convict Householder of a quid pro quo.

Here, the jury would have convicted regardless of the

instructions on Ohio bribery. The evidence was more than

enough to show a quid pro quo—we know this because it

was sufficient to show just that under both the extortion

and honest services fraud theories. And no party argued

that Ohio bribery would require anything less.

6. The government points out that Householder used some of

the money for personal expenses. Those contributions don’t enjoy

First Amendment protection. But the funds spent on Generation

Now and Householder’s other political entities are still covered by

the First Amendment.

28a

Appendix A

On the contrary, both parties characterized all three

public-corruption predicates as requiring a quid pro

quo agreement. At closing, for example, the government

stressed that the public-corruption predicates turned

on whether Householder “solicited or received money

knowing it was given in return for specific official action.”

R. 238, Pg. ID 9485. Defense counsel told the jury the

same thing: “a bribery case requires that quid pro quo, an

explicit agreement, this for that.” Id. at Pg. ID 9587. And

defense counsel understood the government’s theory to

require a quid pro quo. Indeed, on our count, the parties

mentioned the phrase “quid pro quo” ten times during

closing. We can’t find a single instance where any party

suggested the Ohio predicate had a lesser standard. Thus,

we can conclude beyond a reasonable doubt that, had the

jury been told Ohio bribery required a quid pro quo, it

would’ve found Householder guilty.

Prior Inconsistent Statement

Householder’s final challenge to the jury instructions

involves an instruction on an alleged inconsistency

between a witness’s testimony and previous statement

to a reporter.

This challenge involves a specific incident. Juan

Cespedes, one of FirstEnergy’s lobbyists, testified about

a meeting where Householder received a $400,000 check

from FirstEnergy. Cespedes said that a second lobbyist,

Robert Klaffky, had slid a check across the table to

Householder and stated, “my clients care very much about

our issue.” R. 211, Pg. ID 6780. And the defense hoped

29a

Appendix A

to rebut that testimony by calling Klaffky. But after

Cespedes testified, Klaffky received a call from a reporter,

who asked about Cespedes’ testimony. Klaffky responded

that he did not “recall saying any of those things, but I’m

not saying that I didn’t [do or say that].” R. 228, Pg. ID

8454 (citation omitted).

After that call, Klaffky took the stand. On direct

examination by Householder’s counsel, Klaffky claimed

that Householder and FirstEnergy did not reach an

agreement during the October 2018 meeting. So, during

cross-examination, the government brought up Klaffky’s

previous statement to the reporter that he couldn’t recall

what was discussed at the meeting.

Later on, the judge gave the jury the following

instruction: “You have heard the testimony of Robert

Klaffky. You have also heard that before this trial he made

a statement that may be different from his testimony

here in court. The earlier statement was brought to

your attention only to help you decide how believable his

testimony was.” R. 237, Pg. ID 9444-45.

Householder challenges the court’s decision to apply

this instruction to Klaff ky’s allegedly inconsistent

statements. We review the district court’s decision for

abuse of discretion. United States v. Henderson, 2 F.4th

593, 597 (6th Cir. 2021).

The court didn’t abuse its discretion. Klaffky’s denial

of any “pay to play” activity conflicted with his earlier

failure to recall what occurred at the October meeting. R.

30a

Appendix A

228, Pg. ID 8426, 8454. Because a reasonable jury could

find these two statements inconsistent, the court didn’t

abuse its discretion in giving an instruction on the use of

prior inconsistent statements. See United States v. Foster,

376 F.3d 577, 591 (6th Cir. 2004).

In response, Householder says the government had

to admit Klaffky’s prior statement into evidence. He cites

United States v. Toney, where the court found use of prior

inconsistent statements improper because “there was no

evidence before the jury that [the witness] had made the

inconsistent statements.” 161 F.3d 404, 410 (6th Cir. 1998).

Here, by contrast, Klaffky admitted on the record that he

made the statement to the reporter. Thus, the government

didn’t need to separately admit the statement; it was

“admitted” into evidence through Klaffky’s testimony.

We therefore deny Householder’s challenge.

In sum, all of Householder’s challenges to the jury

instructions fail.

II. Sufficiency of the Evidence

Next, Householder brings a sufficiency-of-theevidence challenge to his conviction. This argument fails.

The government alleged that Householder’s enterprise

committed dozens of racketeering acts. At closing, the

government divided these alleged acts into three broad

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Appendix A

categories: public-official bribery, private-citizen bribery,

and money laundering.

Householder challenges the sufficiency of the evidence

underlying all three. To succeed, he bears a “very heavy

burden.” United States v. Robinson, 99 F.4th 344, 354

(6th Cir. 2024) (internal quotation marks omitted). His

conviction stands if “any rational trier of fact could have

found the elements of the crime beyond a reasonable

doubt.” Id. at 353 (internal quotation marks omitted). In

assessing Householder’s challenge, we must “view[] the

evidence in the light most favorable to the government”

and “draw all available inferences and resolve all issues

of credibility in favor of the jury’s verdict.” Id. (internal

quotation marks omitted). We address each category of

racketeering activity in turn.

Public-Official Bribery

The evidence showed that Householder agreed to

commit—and did commit—extortion and honest services

fraud. That is, he solicited and received millions of

dollars from FirstEnergy in exchange for passing the

bailout legislation and saving that bailout from a voter

referendum.

Start at the beginning. A rational jury could infer that

the corrupt bargain began at the D.C. dinners in January

2017. Longstreth told the jury that at these dinners,

Householder outlined to the FirstEnergy executives “the

entire plan of how he was going to get elected speaker.”

R. 217, Pg. ID 7638. The FirstEnergy folks, in turn, laid

32a

Appendix A

out their “need to do something at the state level” about

the financial failings of FirstEnergy Solutions. Id. The

jury then learned that Longstreth set up Generation Now

so Householder could receive “undisclosed and unlimited

contributions,” and FirstEnergy pledged a million dollars

to it. Id. at Pg. ID 7636.

Throughout 2017 and 2018, as Householder recruited

candidates to run and vote for him as speaker, he

repeatedly turned to FirstEnergy to fund those races.

The jury heard that FirstEnergy was the “bank,” and

the account was “unlimited.” R. 302, Pg. ID 12438, 12453.

During the lead-up to the 2018 election, FirstEnergy gave

around $3 million to Generation Now and its subsidiary

entities.

To be sure, a “flow of benefits from one person to a

public official . . . does not by itself establish bribery.”

Terry, 707 F.3d at 615. Rather, the benefits “must be part

and parcel of an agreement by the beneficiary to perform

public acts for the patron.” Id.

But ev idence abounds that Householder and

FirstEnergy knew that this funding was in exchange

for bailout legislation if Householder were elected. As

Longstreth recounted at trial, Householder knew all

about FirstEnergy’s financial troubles at the Washington

dinners. Householder also wanted updates as the election

drew nearer. For example, Dowling texted Jones, “Larry

wants to hear about us—status of company, what’s

important to us this year and next year.” R. 302, Pg. ID

12345. And when Jones texted Householder, “We are

33a

Appendix A

rooting for you and your team,” Householder replied, “we

are on [the] same team.” Id. at Pg. ID 12348.

Householder’s commitment to FirstEnergy’s financial

health also left an impression on Jones and Dowling. As

Dowling put it, “I know you guys are there for us.” R. 307,

Pg. ID 12710. Or, as Jones confided to Longstreth, “I know

[Householder] won’t let anything bad happen to us.” R.

217, Pg. ID 7624. And, when Householder and Longstreth

warned Jones a month before the election that they were

having “some trouble,” Jones offered, “I’ll help you with

whatever you need.” Id. at Pg. ID 7664-65. As Longstreth

told the jury, Jones was all-in because FirstEnergy was

“in need of the state solution, the bailout for their nuclear

power plants.” Id. at Pg. ID 7665-66. FirstEnergy then

wired another $500,000 to one of Householder’s entities.

Meanwhile, FirstEnergy Solutions lobbyists were

meeting with Householder. As one of those lobbyists,

Cespedes, testified, he gave checks to Householder in

person to establish that “our support was specifically tied

to the [bailout] legislation.” R. 211, Pg. ID 6786. Having

face time with Householder was critical to FirstEnergy

Solutions. It allowed the lobbyists to “tie the contributions

directly back to our issue.” Id. at Pg. ID 6790.

The meetings also were productive. It was “obvious”

that Householder knew all about FirstEnergy’s financial

woes. Id. at Pg. ID 6767. And Householder was “very

affirmative” in his support of FirstEnergy. Id. at Pg. ID

6783. He hashed out the details of what he could do in the

legislature once he became speaker.

34a

Appendix A

The jury then heard how Householder “went to war”

for FirstEnergy once elected speaker. R. 302, Pg. ID

12423. He created a subcommittee and filled it with many

Team Householder members. He met with FirstEnergy

Solutions lobbyists and “establish[ed] a timeline” for the

legislation. R. 211, Pg. ID 6799-6801. And he shuttled

the draft legislation back and forth with FirstEnergy so

they could “edit” and “rewrite” the proposed bill. Id. at

Pg. ID 6806-08.

But the FirstEnergy payments weren’t over. When

it became apparent that the proposed legislation, House

Bill 6, would encounter opposition, Longstreth made clear

to Cespedes that FirstEnergy needed to keep paying

Generation Now if it expected to have the “continued

support” of Speaker Householder. Id. at Pg. ID 6811-12.

And Longstreth left no doubt: “this was the Speaker’s

wishes.” Id. at Pg. ID 6813. Cespedes testified that

FirstEnergy “had no choice” but to comply. Id. at Pg. ID

6815. In return, FirstEnergy “would get the full support

of the Speaker and make sure this legislation was passed.”

Id. at Pg. ID 6817.

Nor did FirstEnergy turn off the faucet once the

legislation passed. In response to the referendum

campaign to repeal House Bill 6, FirstEnergy contributed

around $35 million to Householder via Generation

Now. The jury heard that Householder promised the

FirstEnergy Solutions chairman to “do everything in his

power to help defeat the referendum.” Id. at Pg. ID 6846.

What did Householder do to keep his promise? For

one, he pressured Attorney General Yost to reject the

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Appendix A

petition language. And Householder asked his staff

to begin drafting new legislation should the initiative

succeed; the new legislation was “ready to go” before the

signature-collection period was over. R. 303, Pg. ID 12580.

The jurors also heard no shortage of evidence that

the conspirators knew that they were doing wrong. Clark,

for one, described the relationship of Householder and

FirstEnergy as “pay to play.” R. 302, Pg. ID 12424. Borges

likened FirstEnergy’s payments to “Monopoly money”

and described the relationship between Householder and

FirstEnergy as an “unholy alliance.” R. 303, Pg. ID 12538,

12554. If “people [were] going to get fat off of this,” Borges

mused, “why . . . not us.” Id. at Pg. ID 12538. As Cespedes

told Borges after one set of payments: “Who would ever

assume a bankrupt company is willing to spend 15 million.

What a joke? LOL.” R. 211, Pg. ID 6826. Or as Klaffky

called FirstEnergy’s ploy: “High risk, high reward.” R.

303, Pg. ID 12644. And when House Bill 6 passed, Jones

bragged to Dowling that their “bbiiiiiiig bet” had “paid

off.” R. 302, Pg. ID 12406. Dowling’s response? “Huge

bet.” Id.

What’s more, Householder tried to conceal his tracks

along the way. It began with the web of secret 501(c)(4)

entities. He tried to cajole another representative into

deleting text messages about House Bill 6. He deleted

his call logs with Yost during the referendum saga. And

he gave “unequivocally false” testimony, according to the

district court. R. 285, Pg. ID 11182.

36a

Appendix A

In sum, Householder committed multiple RICO

predicates when he solicited and received payments from

FirstEnergy in exchange for specific official action. See

18 U.S.C. §§ 1343, 1346; 18 U.S.C. § 1951; Ohio Rev. Code

Ann. § 2921.02. It was reasonable for a jury to conclude

that he received money from FirstEnergy to finance a

political machine that would elect him to the speakership;

passed a billion-dollar bailout for FirstEnergy in return

for those contributions; and solicited more contributions

in exchange for agreeing to take official action to preserve

that bailout.

Householder’s Counterarguments

Householder offers a slate of arguments to the

contrary. They fail.

His first argument sounds in law: he maintains that

in the context of campaign contributions, the government

can only show a quid pro quo through “unambiguous

evidence of a corrupt agreement—evidence that cannot

be explained as ordinary electoral politics.” Appellant

Br. at 46.

But that’s not the governing standard. Rather, “the

government’s evidence need not rule out all reasonable,

alternative hypotheses to guilt.” Sittenfeld, 128 F.4th

at 771. We trust juries to “parse words and actions to

discern the intent behind them,” even in the context of

campaign contributions. Id. To be sure, the terms of the

agreement must be “unambiguous” to the parties involved.

Id. But “the existence of that agreement is governed

by the reasonable doubt standard.” Id. (emphasis in

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Appendix A

original). The lack of a heightened requirement makes

sense: Congress did not write into bribery statutes an

unambiguous-evidence exception for public officials who

receive campaign contributions.

Householder cites one case to the contrary. It’s United

States v. Benjamin, No. 21-CR-706, 2022 WL 17417038

(S.D.N.Y. Dec. 5, 2022), rev’d and remanded, 95 F.4th

60 (2d Cir. 2024). Householder cites the district court’s

opinion, which said an agreement predicated on campaign

contributions must be “clear and unambiguous.” Id. at

*12. But the Second Circuit reversed on appeal: joining

“[e]very other circuit to have considered the question,” it

held that the “explicit quid pro quo requirement may be

met by implication from the official’s and the payor’s words

and actions and need not entail an express statement.”

Benjamin, 95 F.4th at 68. Thus, this case isn’t helpful to

Householder.

Householder also claims that the evidence had a

“plausible explanation sounding in politics.” Appellant

Br. at 47. Householder points us to his “longtime support”

of public utility companies. Id. at 50. But Householder

pointed the jury to this exact alternative at trial. Indeed,

his attorney began closing statements by emphasizing

Householder’s “long-held political views regarding the

importance of energy generation in Ohio.” R. 238, Pg. ID

9541. We can’t disturb the jury’s decision rejecting this

explanation.

Householder further disputes Longstreth’s testimony

about the Washington, D.C. dinners because Jones’s travel

38a

Appendix A

records show that Jones wasn’t in Washington for the first

dinner and was elsewhere at the time of the second dinner.

But this argument fails. For starters, the “credibility of

a trial witness is not relevant to our determination of

the sufficiency of the evidence to support a conviction.”

Hills, 27 F.4th at 1176. Householder’s attorneys were

free to—and did—cross-examine Longstreth about

these dinners and the alleged inconsistency with Jones’s

travel records. Further, it’s irrelevant if Jones himself

wasn’t at these dinners. Householder doesn’t dispute that

other FirstEnergy executives, including Vice President

Dowling, attended.

In addition, Householder claims that the government

failed to establish that either Householder or the

FirstEnergy executives “promised to do anything” at

these dinners. Appellant Br. at 49. But the jury heard

subsequent evidence suggesting otherwise, from the

immediate creation of Generation Now to the repeated

conversations between Householder and FirstEnergy

executives about contributions and potential legislation.

Householder also takes issue with the government’s

emphasis on the size of his contributions, which came

out to just under $60 million. He argues that the size

alone isn’t evidence of a quid pro quo. But a jury could

have reasonably inferred from this exorbitant amount of

money that FirstEnergy paid Householder in exchange for

bailout legislation. Indeed, a jury could find it unlikely that

(1) FirstEnergy would squander tens of millions of dollars

amid financial difficulties with no promise of anything in

return, and (2) that Householder would go “to war” to pass

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Appendix A

a controversial, billion-dollar bailout in return for chump

change. R. 302, Pg. ID 12423.

The next objection is that the official action was not

performed “at the time” that he received the contributions.

Appellant Br. at 52-53. Thus, Household argues, he didn’t

agree to take action in return for contributions. But

“fulfillment of the quid pro quo is not an element of the

offense.” Evans, 504 U.S. at 268, 112 S.Ct. 1881. Rather,

“the offense is completed at the time when the public

official receives a payment in return for his agreement

to perform specific official acts.” Id. (emphasis added);

see also McDonnell v. United States, 579 U.S. 550, 572,

136 S.Ct. 2355, 195 L.Ed.2d 639 (2016) (reiterating that a

“public official is not required to actually make a decision

or take an action”). Thus, the government could show that

Householder began receiving money in March 2017 even

though he didn’t act until January 2018. All that mattered

was that Householder agreed to take official action when

he began receiving the funds.

Finally, Householder cites United States v. Menendez

for the proposition that the government “utterly failed to

connect the quid to the alleged quo.” Appellant Br. at 52

(citing 291 F. Supp. 3d 606 (D.N.J. 2018)). But Menendez

had a critical difference: there was no evidence the

defendants “knew the terms of the quid pro quo” described

in the indictment. Menendez, 291 F. Supp. 3d at 630. Not

so here. The government presented abundant evidence

that Householder knew FirstEnergy’s payments were

in exchange for official action in passing and preserving

the bailout.

40a

Appendix A

All told, none of Householder’s arguments justifies

overturning the jury’s verdict.

B. Money Laundering

As Householder acknowledges, the sufficiency of the

evidence supporting the money laundering predicates

depends on whether the payments from FirstEnergy to

Generation Now constitute bribery proceeds. Since they

do, the money laundering convictions also stand.

Private-Citizen Bribery

Finally, Householder argues that there was insufficient

evidence of the predicate act for private-citizen bribery—

Borges’s $15,000 bribe to Tyler Fehrman for inside

information on the signature-collection campaign. But

the government never argued that the predicates relating

to private-citizen bribery applied to Householder. So, we

need not address these arguments.

In sum, Householder’s sufficiency-of-the-evidence

challenge fails. There was ample evidence for the jury to

conclude that Householder solicited and received millions

of dollars from FirstEnergy in return for passing and

then preserving bailout legislation. We won’t disturb that

decision.

41a

Appendix A

III. Right to Counsel

Householder next alleges two Sixth Amendment

violations at trial. Neither succeeds.

Dismissal of a Juror

Householder argues that the court’s dismissal of a

juror without consulting his counsel deprived him of his

Sixth Amendment rights. He is incorrect.

A few days into trial, a juror tested positive for

COVID-19. The court ordered a five-day recess and

requested that all jurors obtain a negative COVID test.

But the afternoon before the recess was set to end, the

court emailed Householder’s counsel about a related issue:

another juror still hadn’t received his COVID test, did not

know when he would receive it, and was not inclined to

take another test. This juror also refused to wear a mask

in defiance of a new court order and would need to be cut

anyway if the deliberations lasted into early March. Thus,

the court told counsel, it had decided to remove this juror

now, and to return the next day with 15 jurors.

Householder disputes whether the court gave notice to

counsel before dismissing the juror. But that’s irrelevant

because the court didn’t need to confer with counsel before

dismissing the juror.

Courts may “replace any jurors who are unable to

perform or who are disqualified from performing their

duties.” Fed. R. Crim. P. 24(c)(1). In so doing, the “consent

42a

Appendix A

of the parties is not needed if the district court has

‘reasonable cause’ to replace the juror.” United States

v. De Oleo, 697 F.3d 338, 341 (6th Cir. 2012) (internal

quotation marks omitted). When, as here, the court

has “thoroughly explained its concerns,” we defer to its

decision. United States v. Helton, 35 F.4th 511, 523 (6th

Cir. 2022).

As the court made clear in its email to counsel, it had

three reasons to dismiss the juror: his refusal to obtain

a negative COVID test, his refusal to obey court orders

by not wearing a mask, and the possibility that he might

not be available during the trial. The court didn’t err by

identifying these as grounds for dismissing the juror.

B. Speaking with Counsel

Householder brings another Sixth Amendment

challenge, but he brought it too late. More than three

months after filing his opening brief, Householder moved

to file a supplemental brief. He provided no legitimate

procedural basis for his late filing and did not explain

why he couldn’t have made this argument earlier. He’s

therefore forfeited it. See Island Creek Coal Co. v.

Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018) (reiterating

that an argument is “forfeited when it was not raised in

the opening brief” (quotation omitted)).

But even if we were to address Householder’s

contention, it would fail. Householder claims the district

court prevented him from speaking to counsel during

an overnight recess and therefore violated his Sixth

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Appendix A

Amendment rights. But the court actually said: “Mr.

Householder, you’re not to discuss your testimony during

the break. You can speak to your attorneys however,

understood?” R. 228, Pg. ID 8611. The most natural

reading of this instruction is that Householder couldn’t

discuss his testimony during the overnight recess, except

with his counsel. Indeed, after this instruction, defense

counsel did not ask for clarification. They evidently

understood that the district court meant what it said:

Householder couldn’t talk about his testimony but could

speak to his attorney. Therefore, even if we were to reach

Householder’s claim, we would reject it.

IV. Evidentiary Rulings

Householder next disputes two evidentiary rulings

at trial. He claims that the evidence was irrelevant and

unfairly prejudiced him.

Recordings

Householder argues that the district court erred by

admitting two excerpts from recorded conversations that

he had with his co-conspirator, Neil Clark. He is wrong.

Householder took the stand in his own defense.

When asked why he sought to return to the Ohio House,

Householder claimed that he “was discouraged by the

divisiveness there was in politics and frankly in the Ohio

House of Representatives.” R. 228, Pg. ID 8494. The

government then played a short clip of a conversation

between Householder and Clark in which Householder

44a

Appendix A

proclaimed, “ We like war, you know that, Neil?”

Householder then asked Clark if they should “make some

kind of a movement on [two opposing politicians] just to

. . . say that if you’re going to f*** with me, I’m going to

f*** with your kids.” Def. App’x, Gov’t Ex. 913. Defense

counsel didn’t object to the airing of this recording.

Householder also testified that he tracked which

donors supported him or his opponent but denied that

there were “consequences” for those that supported his

opponent. R. 229, Pg. ID 8739-40. The prosecutor then

played another brief clip in which Householder mentioned

his opponent’s donors and recommended “f***[ing] them

over later.” Def. App’x, Gov’t Ex. 906. This time, defense

counsel did object.

Householder challenges the admission of these

recordings as irrelevant and unfairly prejudicial. Evidence

is relevant if it “has any tendency to make a fact more or

less probable than it would be without the evidence” and

“the fact is of consequence in determining the action.” Fed.

R. Evid. 401. This standard is “extremely liberal.” Dortch

v. Fowler, 588 F.3d 396, 400 (6th Cir. 2009) (quotation

omitted). The recordings easily meet that standard.

As the government argues, the recordings were

relevant to undermine Householder’s assertion that he

“sought the Speakership to build bridges in politics.”

Appellee Br. at 90. Householder cites one case where

introduced recordings were found to be irrelevant, but

that case is distinguishable. There, the government

introduced recordings of a defendant using “deeply

offensive racist and misogynistic language.” United

45a

Appendix A

States v. Hazelwood, 979 F.3d 398, 402 (6th Cir. 2020).

But the underlying charges involved mail fraud, and the

recordings had nothing to do with that. See id. Here,

however, the recordings undermined Householder’s claims

about entering politics to lower the political temperature.

The recordings thus were “of consequence” in determining

Householder’s political motives. See Fed. R. Evid. 401.

Householder’s argument about unfair prejudice

also fails. A court “may exclude relevant evidence if its

probative value is substantially outweighed by a danger

of . . . unfair prejudice.” Fed. R. Evid. 403. There wasn’t

any unfair prejudice here, however. Householder’s

unpalatable language aligned with lots of evidence that

the jury received of Householder and his co-conspirators’

foul language. These recordings wouldn’t have unduly

prejudiced him. The recordings also were inconsequential

in the context of the whole trial; overwhelming evidence

demonstrated that Householder solicited and received

money from FirstEnergy in exchange for official action.

The probative value of these recordings, then, was not

“substantially outweighed” by the danger of unfair

prejudice. Id.

B. Co-Conspirator Testimony

Householder’s other evidentiary challenge relates to

the introduction of his co-conspirators’ guilty pleas. This

challenge also fails.

At trial, the government put Longstreth and Cespedes,

who had both pled guilty, on the stand. Householder

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and his co-defendant, Borges, agreed not to impeach

Longstreth and Cespedes with their plea agreements. But

the government still elicited evidence from Longstreth

and Cespedes that they had pled guilty. Householder

argues that this was prejudicial error.

Usually, guilty pleas “may be introduced into evidence

if the co-conspirator or co-defendant testifies at trial, so

that the factfinder will have appropriate facts on hand to

assess the witness’s credibility.” United States v. Sanders,

95 F.3d 449, 454 (6th Cir. 1996). Here, Householder argues

that because he stipulated not to impeach the witnesses

with their guilty pleas, there was no need to bolster their

credibility.

Householder is wrong. One of the jury’s primary tasks

is to assess witness credibility. See United States v. Kelly,

204 F.3d 652, 656 (6th Cir. 2000). The existence of a guilty

plea goes to that question. While our circuit hasn’t spoken

on whether a defendant who stipulates that he won’t attack

a co-conspirator’s motives should still face testimony about

the co-conspirator’s guilt, at least three other circuits

have upheld testimony about guilty pleas under similar

circumstances. See United States v. Montani, 204 F.3d

761, 766 (7th Cir. 2000); United States v. Universal Rehab.

Servs., 205 F.3d 657, 666 (3d Cir. 2000) (en banc); United

States v. Kroh, 915 F.2d 326, 331 (8th Cir. 1990) (en banc).

For good reason. Jurors would “naturally and unavoidably

wonder why” a witness was testifying about crimes in

which he participated. Montani, 204 F.3d at 766. So, by

introducing the witness’s guilty plea, the government

“does not ‘bolster’ the witness’s credibility”; rather, the

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government is answering a question that “unavoidably

would be raised in the jurors’ minds.” Id.7

Householder responds that he wasn’t challenging

Longstreth or Cespedes’ credibility. But jurors are

instructed to evaluate the credibility of all witnesses

who testify. “Indeed, they are so instructed even in the

absence of an affirmative challenge to witness credibility.”

Universal Rehab. Servs., 205 F.3d at 666. Case in point:

the court here instructed the jury “to decide how credible

or believable each witness was.” R. 237, Pg. ID 9400.

Householder also argues that criminal convictions

can be used only to attack a “witness’s character for

truthfulness.” Appellant Br. at 63 (citing Fed. R. Evid.

609(a)). But this point is inapposite—the government

wasn’t impeaching its own witness. Rather, the government

was providing a full picture of the witness it put on the

stand. And a party is entitled “to extract the complete

testimony of his witness . . . rather than be forced to leave

gaping holes.” United States v. LeFevour, 798 F.2d 977,

983 (7th Cir. 1986) (Posner, J.). A rule about impeachment

says nothing about the government’s actions here.

7. Faced with this consistent direction from our sister circuits,

Householder cites almost no law holding that a promise not to

impeach should matter. The best he has are two unreported district

court cases. See Appellant Br. at 62 (citing United States v. Clark, No.

1:19-CR-148, 2020 WL 830057, at *14-15 (N.D. Ohio Feb. 20, 2020);

United States v. Nosal, No. CR-08-0237, 2013 WL 11327121, at *8

(N.D. Cal. Mar. 29, 2013)). That’s insufficient to overcome consistent

circuit-court caselaw.

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In any event, the introduction of the guilty pleas

wasn’t prejudicial. Longstreth and Cespedes testified at

length about the conspiracy and their role in it. The mere

fact that they pled guilty was inconsequential considering

their exhaustive testimony. And the court gave the proper

limiting instruction that the jury could not consider the

pleas as substantive evidence of Householder’s guilt. See

Sixth Cir. Inst. 7.08(3).

We thus find no error.

V. Judicial Bias

Householder further argues that the judge should

have recused himself, and that the judge’s failure to do so

violated the Due Process Clause. Why? On the third day of

trial, Householder’s counsel mentioned that Householder

had raised money for a 501(c)(4) “that was critical” of the

judge’s Ohio Supreme Court campaign in 2000. R. 197, Pg.

ID 4949. Counsel then asked “if the Court holds personal

animosity” towards Householder, and the judge responded

that he didn’t. Id.

The Constitution mandates recusal only in an

“extraordinary situation.” Caperton v. A.T. Massey Coal

Co., 556 U.S. 868, 887, 129 S.Ct. 2252, 173 L.Ed.2d 1208

(2009). The relevant question is “whether, as an objective

matter, the average judge in his position is likely to be

neutral, or whether there is an unconstitutional potential

for bias.” Williams v. Pennsylvania, 579 U.S. 1, 8, 136

S.Ct. 1899, 195 L.Ed.2d 132 (2016) (internal quotation

marks omitted). For example, the Court has required

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recusal where the judge received significant campaign

contributions from a litigant. Caperton, 556 U.S. at 872,

129 S.Ct. 2252. So too where the judge “had significant,

personal involvement as a prosecutor in a critical decision

regarding the defendant’s case.” Williams, 579 U.S. at 8,

136 S.Ct. 1899.

That’s not this case. Householder’s fundraising

occurred two decades before his prosecution. There’s no

evidence that the judge himself knew that Householder

donated to that organization. Not only that, but there

also isn’t any evidence that the organization to which

Householder donated opposed this judge’s campaign.

Thus, the facts of this case are a far cry from Caperton,

where the litigant gave money to a judge’s campaign as

his case was pending. See 556 U.S. at 873, 129 S.Ct. 2252.

In short, Householder hasn’t shown an objective likelihood

for bias.

VI. Sentencing

Finally, Householder challenges the procedural and

substantive reasonableness of his sentence. Householder

received the statutory maximum under RICO: twenty

years. We uphold his sentence.

Procedural Reasonableness

A sentence must be procedurally reasonable. That

is, the court must “properly calculate the [G]uidelines

range” and “adequately explain” its sentence. United

States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018).

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Householder brings three arguments here: (1) that the

court’s calculation of the value of the bribe was erroneous;

(2) that the court’s application of an enhancement for

obstruction of justice was erroneous; and (3) that the

Guidelines overstated the seriousness of his offense.

Value of the Bribe

The Sentencing Guidelines provide an enhancement

for a bribery-related conviction based on the value of

the bribe. U.S.S.G. § 2C1.1(b)(2). Based on the roughly

$59 million Householder received from FirstEnergy, the

district court added 22 levels to Householder’s offense

according to the loss tables in U.S.S.G. § 2B1.1(b). This

enhancement raised Householder’s Guidelines range by

two decades, from 21 to 27 months to 235 to 293 months.

See U.S.S.G. Ch. 5, Pt. A.

As part of the procedural reasonableness requirement,

the district court must “adequately explain why it chose

the sentence.” Rayyan, 885 F.3d at 440. This explanation

allows for “meaningful appellate review” and “promote[s]

the perception of fair sentencing.” Gall v. United States,

552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Further, the district court must find the facts giving rise

to a sentencing enhancement by a preponderance of the

evidence. United States v. Poulsen, 655 F.3d 492, 505 (6th

Cir. 2011).

The explanation here was cursory at best. But even if

there were error in the district court’s explanation, it was

harmless because it did not affect Householder’s sentence.

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The district court explained it “sat through the

entirety of the jury trial,” “heard all of the evidence,” and

could “say with absolute certainty that the government”

showed that all the contributions from FirstEnergy to

Householder were bribes. R. 285, Pg. ID 11180-81. But

this explanation was conclusory—the court made no

specific findings on the record and didn’t refer to the

Presentence Report or the government’s sentencing

memorandum detailing the FirstEnergy contributions.

See United States v. Ferguson, 518 F. App’x 458, 467 (6th

Cir. 2013) (observing that procedural reasonableness

requires “more than a simple and conclusory judicial

assertion”). This cursory explanation hardly “promote[s]

the perception of fair sentencing.” Gall, 552 U.S. at 50,

128 S.Ct. 586. District courts in the future should point

to specific factual findings to support the application of a

sentencing enhancement—especially one that adds two

decades to a defendant’s Guidelines range.

The court also cited the jury’s verdict, but that too

provided little explanation of how the court reached the $59

million number. As the court announced, “all computations

[were] supported by the evidence as ruled by the . . . jury.”

R. 285, Pg. ID 11181. But the jury made no finding about

a total bribe value. Rather, as the government argued

to the jury, “you only need two acts of racketeering to

convict.” R. 238, Pg. ID 9533. And the jury returned a

general verdict without any calculated amount.

The government, for its part, points to the district

court’s observation that it also could have imposed the lossvalue enhancement based on a bribe value of more than

52a

Appendix A

$1 billion. Why? Because the loss-value Guideline allows

courts to use the larger of the “value of the payment”

and “the benefit received or to be received in return for

the payment.” U.S.S.G. § 2C1.1(b)(2). Here, the benefit

FirstEnergy received was over $1 billion. While the

government is right that the court could’ve gone down

this path, the court didn’t. The possibility that the court

could’ve used a larger bribe value therefore says nothing

about how the court calculated $59 million as the benefit

Householder received from FirstEnergy.

Even so, we cannot vacate Householder’s sentence

because any error would be harmless. The district court

maintained that it would have imposed the same sentence

“no matter . . . the guideline computation.” R. 285, Pg. ID

11219. And the court emphasized that the loss calculation

was “academic” because even if it used Householder’s

proposed loss number, the Guidelines range would be “at

or above” the statutory maximum. Id. at Pg. ID 11182. In

such a situation, any error in calculating the Guidelines

range is harmless. United States v. Morrison, 852 F.3d

488, 491 (6th Cir. 2017).

Obstruction of Justice

Next, because the court found that Householder gave

false testimony, it applied a two-level enhancement for

obstruction of justice. See U.S.S.G. § 3C1.1. Householder

challenges that enhancement. But even without the

increase, Householder’s offense level was well above

the Guidelines’ maximum offense level of forty-three.

His imprisonment range also was well above the RICO

statutory maximum. Therefore, any error was harmless.

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Seriousness of the Offense

Householder further claims that the court failed to

address his argument in the Sentencing Memorandum

that the Guidelines “vastly overstate the seriousness” of

his offense. R. 279, Pg. ID 11038. Householder didn’t raise

this argument at his sentencing hearing, so we review for

plain error.

There wasn’t any error, let alone a plain one. The court

did address the seriousness of the offense. Discussing the

§ 3553(a) factors, for example, it emphasized the magnitude

and severity of Householder’s offense, referring to it as

an “assault on democracy and the betrayal of everyone in

Ohio.” R. 285, Pg. ID 11217.

B. Substantive Reasonableness

In addition, Householder challenges the substantive

reasonableness of his sentence. This is “a complaint that

the court placed too much weight on some of the § 3553(a)

factors and too little on others.” Rayyan, 885 F.3d at 442.

Because sentencing is a “matter of reasoned discretion,

not math,” our review is highly deferential. Id. Indeed, we

presume that a within-Guidelines sentence is reasonable.

United States v. Graham, 622 F.3d 445, 464 (6th Cir. 2010).

This sentence was within the Guidelines.

Householder argues that the Court discounted the

minimal effect a sentence would have on deterrence since

Householder was sixty-four at the time. He also claims

the sentence creates unwarranted sentencing disparities.

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Appendix A

But that’s wrong. The court observed that “the risk

of recidivism is likely on the low end here.” R. 285, Pg. ID

11220. But the court also had “no sense” that Householder

grasped the “harm that [he] caused” and emphasized the

need for “adequate general deterrence.” Id. at Pg. ID

11220-21.

And the court addressed any disparities. It looked at

“similarly situated defendants in similar cases” and found

that “sentence[s] at or near the statutory maximum” were

“not out of the norm.” Id. at Pg. ID 11219-20. It emphasized

that any sentencing disparity “would not be unwarranted

on the evidence.” Id. And the court stressed that this was

the “biggest corruption case in Ohio’s history.” Id. at Pg.

ID 11215.

Ultimately, Householder believes the court should

have imposed a different sentence. But our review “focuses

on whether the sentence is reasonable, not whether we

would have imposed the same sentence.” United States v.

Sanders, No. 24-3249, 2024 WL 4579446, at *4 (6th Cir.

Oct. 25, 2024) (citing United States v. Sexton, 512 F.3d

326, 332 (6th Cir. 2008)). We therefore reject his claim.

At the end of the day, Householder’s conviction stands.

Matthew Borges

Matthew Borges also brings several challenges to his

conviction. Most of Borges’s arguments relate to whether

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Appendix A

the government proved that Borges committed various

predicates, or whether particular predicate offenses

were correctly instructed or charged. He makes these

arguments about several predicates: the Travel Act,

honest services fraud, and money laundering. But his

arguments fail.

Sufficiency of the Evidence

We need not address whether the government

adequately proved that Borges committed any predicate

offenses under the Travel Act, honest services fraud

statutes, or money laundering laws. While a defendant

can only be convicted of a substantive RICO offense if

he performs two predicate acts creating a pattern of

racketeering activity, proof of a defendant’s involvement

in two predicates is not required for a RICO conspiracy

offense. Salinas v. United States, 522 U.S. 52, 65, 118 S.Ct.

469, 139 L.Ed.2d 352 (1997). For a conspiracy charge, the

government must only prove that the defendant “knew

about and agreed to facilitate” the underlying scheme.

Id. at 65, 118 S.Ct. 469. We have consistently said the

government does not need to prove that the defendant

committed any predicates himself or even that any overt

acts have been committed—a conspiracy charge rests on

the unlawful agreement to further an endeavor which, if

completed, would satisfy all the elements of a substantive

criminal offense. United States v. Saadey, 393 F.3d 669,

676 (6th Cir. 2005); see also Hills, 27 F.4th at 1174.

There is ample evidence that Borges knew and agreed

to facilitate the illegal activity involved in the Householder

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enterprise. While the bailout bill was being drafted,

Cespedes regularly communicated with Borges about

the legislation and both Householder and FirstEnergy’s

involvement in the deal. When the bill faced opposition,

FirstEnergy hired Borges to identify legislators that

needed to be persuaded and to suggest language for the

bill. And during the referendum campaign, Borges tried

to pressure Yost to interpret House Bill 6 as a “tax,”

since taxes aren’t subject to referendum. Borges also led

Householder’s efforts to disrupt the signature campaign.

He hired operatives to research and create media stories

about the OACB signature collectors. All told, Borges had

a deep knowledge of (and involvement in) Householder’s

bribery scheme.

And, to the degree that Borges claims he did not

know the enterprise was engaging in illegal activity, that

argument fails. Borges attempted to make this argument

throughout the trial. But the jury ultimately rejected it.

And this court can’t second guess that conclusion.

That brings us to the Fehrman payment. Borges

argues this payment did not violate the Travel Act or

amount to private honest services fraud. But it did not have

to. Even if the Fehrman payment is not a valid predicate,

it still evinces Borges’s intent to further the Householder

enterprise because intent to further the enterprise need

not be shown through predicates or even criminal activity.

See United States v. Bailey, Nos. 19-2280/2281/2354/201235, 2022 WL 2444930, at *3 n.1 (6th Cir. July 5, 2022).

All this evidence makes clear that Borges knew the object

of the enterprise was to get the bailout deal done and knew

the enterprise was using illegal means to make it happen.

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Appendix A

R. 211, Pg. ID 6787-88 (Cespedes explaining that he kept

Borges apprised of all the Householder team’s efforts); R.

303, Pg. ID 12538 (Borges telling Fehrman they could “get

fat off of this” “unholy alliance” between Householder and

FirstEnergy). That’s sufficient to establish co-conspirator

liability. See Salinas, 522 U.S. at 65, 118 S.Ct. 469.

This was also clear to the jury. In closing arguments,

the government told the jury it could convict Borges even

if he did “not personally commit any racketeering acts

at all” but “simply . . . agree[d] that another conspirator

would commit two acts of racketeering activity and

agree[d] to be part of the enterprise and further its

efforts.” R. 238, Pg. ID 9482. The jury instructions echoed

this statement of law. In its description of a “pattern of

racketeering activity,” the instructions explained: “The

government is not required to prove that the defendant

actually committed the two acts of racketeering activity,

or any acts at all. But the government must prove beyond

a reasonable doubt that the defendant agreed that either

he or another member of the conspiracy would commit

at least two racketeering activities.” R. 237, Pg. ID 9418.

Therefore, any error related to either the Travel Act

predicate or the private honest services fraud predicate

would be harmless because it was clear Borges did not

need to commit any predicate acts for the jury to find him

guilty of a RICO conspiracy. Saadey, 393 F.3d at 676-77

(finding a trial court’s failure to strike an invalid predicate

harmless because RICO conspiracy does not require proof

that the defendant committed any predicates so “the fact

that the conduct charged . . . cannot constitute a predicate

offense is immaterial”).

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Appendix A

So, all of Borges’s arguments about the sufficiency of

the evidence fail.

II. Evidentiary Challenges

Borges also challenges the district court’s evidentiary

rulings. He makes three claims. All fail.

Meetings with Counsel

First, Borges objects to the district court’s treatment

of seven pieces of testimony. The evidence related to

several individuals—Borges, Cespedes, and more—

meeting with lawyers during the attempt to pass House

Bill 6. Seven instances are at issue. 8 The meetings with

counsel largely discussed what Borges calls “fund raising

[sic] activities.” Appellant Br. at 54.

The district court didn’t abuse its discretion when it

sustained the prosecution’s objections to this testimony.

See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118

S.Ct. 512, 139 L.Ed.2d 508 (1997). Why? The court was

concerned that Borges was attempting to raise a pseudoadvice of counsel defense.

An advice of counsel defense is an affirmative defense

in which a defendant says he didn’t have the intent to do

the unlawful act because he followed the advice of counsel

8. R. 191, Pg. ID 4603; R. 206, Pg. ID 6261-67; R. 208, Pg. ID

6529-31; R. 208, Pg. ID 6548-49; R. 212, Pg. ID 6935; R. 212, Pg. ID

6991; R. 219, Pg. ID 7836.

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Appendix A

in good faith. See Williamson v. United States, 207 U.S.

425, 453, 28 S.Ct. 163, 52 L.Ed. 278 (1908). To be eligible

for an “advice of counsel” defense, a defendant must have

(1) fully disclosed all pertinent facts to his lawyers and (2)

relied on the advice of counsel in good faith. United States

v. Lindo, 18 F.3d 353, 356 (6th Cir. 1994).

Here, the court was right to be concerned about a

pseudo-advice of counsel defense. Borges never made a

complete disclosure of all pertinent facts to the lawyers,

nor did he act in good-faith reliance on the advice of

counsel. Id. Thus, any attempt to introduce evidence about

the attorney meetings would only confuse the jury.

In response, Borges says that the attorney meetings

were necessary to understand the background of the

charged offenses. Such evidence is commonly known as

res gestae evidence.

But the “background circumstances exception” is

“not an open-ended basis to admit any and all other act

evidence the proponent wishes to introduce.” United

States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000). Indeed,

even the “very definition of what constitutes background

evidence contains inherent limitations.” Id. We must

look at whether the background facts are “inextricably

intertwined with the charged offense or those acts, the

telling of which is necessary to complete the story of the

charged offense.” Id.

Here, the evidence that Borges put forward—a few

meetings with lawyers—isn’t inextricably intertwined

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Appendix A

with his actions in the conspiracy. The meetings with

lawyers—which Borges claims occurred in the ordinary

course of fundraising—are not relevant to whether Borges

tried to join a conspiracy of bribery and money laundering.

As far as Borges argues that some evidence was of such

debatable use that it should have been admitted, or else

was necessary to get the full picture of the event in

question, that’s simply a disagreement with how the judge

weighed the evidence. Because we review for abuse of

discretion, that argument fails.

B. Testimony from Signature Collectors

Next, Borges argues that the district court erred

when it admitted testimony from two AMT employees. At

first glance, it’s difficult to discern exactly what Borges

argues about these employees. At trial, he objected to

their statements as hearsay. Here, he first says that

the witnesses’ statements weren’t based on personal

knowledge, and then says they were unduly prejudicial.

But Borges’s arguments about these witnesses also fall

short.

Because Borges didn’t make this objection about

personal knowledge or prejudice at trial, we review for

plain error. Fed. R. Crim. P. 52(b); United States v. Young,

470 U.S. 1, 15-16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985).

“A witness may testify to a matter only if evidence is

introduced sufficient to support a finding that the witness

has personal knowledge of the matter.” Fed. R. Evid. 602.

Testimony is excluded for lack of personal knowledge

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Appendix A

when no reasonable juror could believe that the witness

had the ability and opportunity to perceive the event he

testified about. United States v. Hickey, 917 F.2d 901, 904

(6th Cir. 1990).

Borges objects to testimony from two AMT employees.

The first is testimony from AMT CEO Michael Roberson,

who testified that his employees were harassed, yelled

at, stalked, and bombarded with text messages and

phone calls from opposition workers. He also said that

the employees were “poached, offered money and a

plane ticket to leave the state or offered money and an

opportunity to go work for the opposition.” R. 216, Pg.

ID 7500. Next, Borges challenges testimony from AMT

consultant Douglas Gray. The witness offered similar

testimony. Gray explained that “trackers” would follow

around signature collectors. Id. at Pg. ID 7524. They would

often have a counter-petition and try to persuade a person

to sign their alternate petition, with the “ultimate goal” of

having that person “throw up [his] hands and say I don’t

know, I’m not signing either one.” Id. at Pg. ID 7523. Gray

also testified the police were called out of concern for his

employees’ safety. Id. at Pg. ID 7525.

The district court didn’t err when it admitted this

testimony. Both individuals knew about these events

because they supervised, managed, and were intimately

involved with the signature-collection efforts. Thus, both

Roberson and Gray had extensive personal knowledge of

the staffing challenges related to the petition initiative and

were more than qualified to testify about the harassment

that caused many of their employees to quit.

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Appendix A

Next, consider Borges’s arguments that Roberson and

Gray’s testimony was unfairly prejudicial. Since he did

make this objection at trial, we review the district court’s

determination for an abuse of discretion. Joiner, 522 U.S.

at 141, 118 S.Ct. 512.

Borges’s argument hinges on Federal Rule of Evidence

403. Recall that a district court can exclude evidence under

Rule 403 only if its relevance is “substantially outweighed

by the danger of unfair prejudice.” United States v.

Hans, 684 F.2d 343, 346 (6th Cir. 1982). The trial judge’s

discretion in balancing the probative value of evidence

against its potential for unfair prejudice is “very broad.”

United States v. Dabish, 708 F.2d 240, 243 (6th Cir. 1983).

“[T]he test is strongly weighted toward admission.”

Hazelwood, 979 F.3d at 412 (quotation omitted). Thus, a

litigant who makes a Rule 403 challenge faces a steep hill.

Borges can’t make the climb.

While there’s little doubt that the testimony portrayed

Borges and his co-conspirators in a bad light, it was

probative of the tenor of the anti-referendum campaign

and wasn’t unfairly prejudicial. Roberson and Gray

both testified about how the anti-referendum campaign

worked. As Roberson put it, the employees were stalked,

intimidated, harassed, and some were assaulted. Neither

Roberson nor Gray’s recollection was unnecessary—

rather, they recounted the basic facts of what occurred.

Were some of those actions ugly? Yes. But they were also

integral to understanding how the Householder enterprise

and the anti-referendum campaign worked. Thus, the

district court didn’t err by allowing such testimony.

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Appendix A

Borges, for his part, argues that the evidence was

unduly prejudicial because it conveyed “gangster-style

conduct that the average juror would associate with

racketeering.” Appellant Br. at 56. But such conclusory

labels don’t help his case. Instead, what matters is whether

the testimony was so prejudicial that it substantially

outweighed any probative value. Hans, 684 F.2d at 346.

Here, it wasn’t.

Thus, Borges’s arguments about the testimony of the

AMT employees fails.

Guilty Pleas

Borges also argues that the district court erred

when it admitted evidence of Longstreth and Cespedes’s

guilty pleas. This is the same challenge as the one that

Householder brought. And just like in Householder’s case,

Borges’s argument has no merit. See supra, Part IV.B.

We thus reject it.

We affirm.

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Appendix A

CONCURRENCE

THAPAR, Circuit Judge, concurring. As the per

curiam opinion explains, conspiracy law forecloses

Matthew Borges’s arguments. See Salinas v. United

States, 522 U.S. 52, 65, 118 S.Ct. 469, 139 L.Ed.2d 352

(1997). That same framework also ties Borges’s conviction

to Larry Householder’s bribery scheme. Householder’s

guilt is clear under current law. But if the Supreme Court

revisits its bribery cases and undermines the foundation

of Householder’s conviction, Borges’s conviction is also

ripe for reconsideration.

Understanding Borges’s arguments requires a brief

discussion of Householder’s conviction. A jury found

Householder guilty of RICO conspiracy. One of the

charged predicates was extortion under the Hobbs Act.

The Supreme Court has said that this statute prohibits

a public official from receiving money in exchange for

official action—in other words, a quid-pro-quo bribery

agreement. United States v. Sittenfeld, 128 F.4th 752,

787-89 (6th Cir. 2025) (Murphy, J., concurring).

Where does the Supreme Court’s reading of the statute

come from? Not the text. The Hobbes Act criminalizes

“extortion,” which is “the obtaining of property from

another, with his consent, induced by wrongful use of

actual or threatened force, violence, or fear, under color

of official right.” 18 U.S.C. § 1951(b)(2). In other words, it

criminalizes the conduct of an official who “claim[s] that

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Appendix A

their office gives them the right to the money.” Sittenfeld,

128 F.4th at 788 (Murphy, J., concurring). That’s textbook

extortion, where an official makes a victim of the payor

by forcing him to fork over the money. And that act

is different than bribery, which requires two willing

partners in crime. Id. at 787-88.

Yet the Supreme Court has turned the Hobbs Act into

a bribery law. Id. at 788 (citing Evans v. United States,

504 U.S. 255, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992)). In so

doing, the Evans Court “simply made up” the quid-proquo requirement. Evans, 504 U.S. at 286, 112 S.Ct. 1881

(Thomas, J., dissenting). It held that an official commits

extortion when he “receives a payment in return for his

agreement to perform specific official acts.” Id. at 268,

112 S.Ct. 1881 (majority opinion).

This distinction matters. Imagine a candidate promises

to oppose a dam’s construction and hosts a fundraiser to

publicize his opposition. A rancher attends and gives the

candidate a $10,000 check. Handing over the check, the

rancher says to the candidate, “I’m giving you this money

because you promised to oppose that dam.” That’s not

extortion. Instead, it’s a classic campaign contribution,

as the government acknowledged at oral argument. But

under one reading of Supreme Court caselaw, this routine

political activity is illegal. The candidate has “receive[d] a

payment in return for his agreement to perform specific

official acts.” Id.

As Judge Murphy explained, expanding the Hobbs

Act to potentially cover such activity poses serious

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constitutional issues. See Sittenfeld, 128 F.4th at 790-91

(Murphy, J., concurring). After all, the First Amendment

“has its fullest and most urgent application precisely to

the conduct of campaigns for political office.” McCutcheon

v. FEC, 572 U.S. 185, 192, 134 S.Ct. 1434, 188 L.Ed.2d

468 (2014) (opinion of Roberts, C.J.) (quoting Monitor

Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28

L.Ed.2d 35 (1971)). But one reading of Evans suggests

that the Hobbs Act criminalizes at least some campaign

contributions. That’s inconsistent with the Constitution’s

ironclad protection of political speech.

Indeed, these concerns apply with full force in

Householder’s case. The district court’s jury instructions—

although supported by one reading of Evans—swept in

everyday political activity. The instructions described an

illegal quid pro quo as “a public official’s receipt of things

of value when the public official knows that the person

who gave the thing of value was doing so in return for the

public official performing or agreeing to perform a specific

official action.” R. 260, Pg. ID 10605-06. That definition

captures everyday politics. For example, in the candidate

and rancher hypothetical above, the candidate received

the rancher’s check “know[ing]” that the rancher “was

doing so in return for” the candidate’s promised opposition

to the dam. Id. at Pg. ID 10606. Thus, under the district

court’s instructions, both the candidate and the rancher

could face up to 20 years in prison for Hobbs Act extortion.

Worse, the instructions eliminated an obvious defense:

that the candidate would’ve opposed the dam regardless

of the rancher’s contribution. The instructions made clear

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that “it is not a defense to bribery . . . even if the public

official would have performed the official action anyway.”

Id. So, in our rancher hypothetical, the instructions told

the jury to convict a candidate even if he would have

supported the dam anyway. That raises serious First

Amendment issues.1

All’s to say, I join the chorus of judges encouraging

the Supreme Court to revisit Evans. See Silver v. United

States, ___ U.S. ___, 141 S. Ct. 656, 656-57, 209 L.Ed.2d 18

(2021) (Gorsuch, J., joined by Thomas, J., dissenting from

denial of certiorari) (calling on the Court to reconsider

Evans); Ocasio v. United States, 578 U.S. 282, 300, 136

S.Ct. 1423, 194 L.Ed.2d 520 (2016) (Breyer, J., concurring)

(agreeing that Evans “may well have been wrongly

decided”); Sittenfeld, 128 F.4th at 772 n.8 (Nalbandian,

J.) (“At this point, McCormick and Evans are nearly 35

years old and it may be time for the Court to revisit or

refine the doctrine.”); id. at 792 (Murphy, J., concurring)

1. While Evans remains good law, district courts must ensure

juries aren’t convicting defendants based on protected conduct.

It’s critical that district courts distinguish between legitimate

contributions and illegal bribes. One way to do so is to focus on

causation. If an official wouldn’t have taken the action but for the

contribution, then the payment is a bribe. There’s also another

option: a bribe occurs when the official receives the money knowing

his conduct is “controlled by the terms of the promise.” McCormick

v. United States, 500 U.S. 257, 273, 111 S.Ct. 1807, 114 L.Ed.2d 307

(1991). Courts can also instruct the jury to consider whether the

official would’ve performed the action anyway, which means the

payment wasn’t a bribe. See United States v. Sittenfeld, Case No.

1:20-cr-142, Jury Instrs. at 26, 39. Unfortunately, the instruction

here had none of these safeguards.

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(encouraging the defendant to ask the Court to “reassess

the [Hobbs] Act’s scope in light of three decades’ worth

of precedent finding campaign donations entitled to

strong First Amendment protection”); id. at 806 (Bush,

J., dissenting) (emphasizing that “[i]t would be helpful for

the Supreme Court to provide guidance here”). Should the

Court act, Householder’s conviction may well fall.

II.

If it does, that will have a trickle-down effect on

Borges’s conviction. For Borges’s conviction for RICO

conspiracy to stand, the government had to prove that

he intended to further an endeavor that involved two (or

more) predicate criminal acts. 18 U.S.C. § 1961; H.J. Inc.

v. Nw. Bell Tel. Co., 492 U.S. 229, 237, 109 S.Ct. 2893, 106

L.Ed.2d 195 (1989). Here, there were several predicates:

the Travel Act, private honest services fraud, money

laundering, and a trio of public-official bribery statutes—

Hobbs Act extortion, public honest services fraud, and

Ohio bribery.

And if the public-official bribery convictions can’t

stand, one or more predicate offenses would be invalid.

Sometimes, that requires overturning the whole

conviction. The key question is whether the invalid

predicate is “inextricably intertwined” with the valid

predicate offenses. Baugh v. United States, 64 F.4th 779,

782 (6th Cir. 2023). Do the two predicates stem from the

exact same act? If yes, the two questions are inexplicably

intertwined. If not, they aren’t.

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In other words, the key inquiry is whether the “record

furnish[es] the jury with any basis to conclude” that a

defendant committed the invalid predicates but not the

valid ones. Id. at 782 n.2 (emphasis in original). If it did,

the conviction can’t stand. But if the underlying conduct

is the same, then the conviction is proper.

Here, if Householder’s public-official bribery

predicates are invalid, then Borges’s conviction rests on

shaky ground to say the least. Why? Because there would

not be enough valid predicates for Borges’s conviction to

stand.

To start, Borges makes persuasive arguments that

doom his Travel Act predicate. Next, while the honest

services fraud predicate rests on firmer theoretical

ground, it too raises serious concerns. If Householder’s

public-official bribery predicates were taken out of the

picture as well, then Borges’s conviction would not stand.

Borges’s role in Householder’s saga started out small.

Borges knew one of the FirstEnergy lobbyists, Juan

Cespedes, and Cespedes kept Borges in the loop about

his efforts to procure a bailout deal for FirstEnergy by

getting Householder elected speaker. So, once Householder

won the speakership, Cespedes and FirstEnergy turned

to Borges for help getting the bailout legislation passed.

They began by asking Borges to suggest language for

the bill and to identify legislators who were on the fence

about the bailout.

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As the bailout legislation passed the Ohio House

of Representatives and proceeded to the state senate,

Borges’s involvement increased. He thought the bailout

might trigger a citizen-led effort to repeal the bill. So, he

took preventative steps to make the bill referendum-proof.

But when the referendum did materialize, Borges

quarterbacked a multi-pronged effort to defeat it. The

proponents of the referendum needed a certain number

of signatures within 90 days of the bailout’s passage to

get on the Ohio ballot. To prevent this result, Borges

tried to get information about the signature-collection

campaign and disrupt its activities. One way he did so was

by asking Tyler Fehrman, who worked at the signaturecollection firm the referendum campaign hired, how many

signatures his group had collected. Borges paid $15,000 to

persuade Fehrman to find out how many signatures the

firm obtained, and promised that he’d pay $10,000 once

he received the data that he requested. Fehrman never

sent the data.

The bulk of Borges’s arguments concern this payment.

The government argued that this payment could serve

as a predicate offense in two ways: as a violation of the

Travel Act and a form of honest services fraud. Borges

disagrees. First, Borges points out that he violated the

Travel Act only if he also violated a different Ohio election

law—one that the state has never charged anyone with

violating. And he argues that even if Ohio wanted to use

that election law against him, it would have needed to go

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through a lengthy administrative process—a process the

state never even began. Thus, he believes that the federal

government wrongly usurped the state’s remedial scheme.

Second, he argues that the government’s honest services

fraud theory has several flaws. These include that it

violated recent caselaw requiring a recognized property

interest, that Borges’s jury instructions were deficient,

and that Borges didn’t induce a breach of a fiduciary duty.

Borges’s arguments about both predicates have merit.

The Travel Act prohibits using interstate commerce to

commit “any unlawful activity,” defined to include various

types of state laws. 18 U.S.C. § 1952(a)-(b). The Ohio law

invoked by the government prohibits an individual from

giving something of value to someone working for (or

against) a referendum campaign to influence how that

person does his job. Thus, the Travel Act charge required

the government to prove that Borges used interstate

commerce to bribe an employee or agent of the referendum

campaign—with the “bribe” being Borges’s payment to

Fehrman. 2

2. Technically, the Travel Act prohibits using “any facility in

interstate or foreign commerce” with the intent to “promote, manage,

establish, carry on, or facilitate . . . any unlawful activity.” 18 U.S.C.

§ 1952(a). “[U]nlawful activity,” in turn, includes “extortion, bribery,

or arson in violation of the laws of the State in which committed.” Id.

§ 1952(b)(i)(2). The state law predicate that the government charged

Borges with violating was Ohio Rev. Code. Ann. § 3517.22(A)(2).

That’s a statute entitled “unfair activities in issue campaign[s].”

Id. It prohibits promising, offering, or giving a “valuable thing or

valuable benefit to any person who is employed by or is an agent

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The federal government’s reliance on this state-law

predicate raises a host of challenging questions. For one,

what state crimes suffice as Travel Act predicates? Is a

violation of an Ohio election law “bribery” under the Travel

Act? And if the answers to these questions aren’t clear,

then how is the defendant on sufficient notice to be held

criminally accountable for his acts?

In three cases, the Supreme Court recognized that the

Travel Act implicates these concerns but failed to give the

lower courts clear guidance. In United States v. Nardello,

the defendant was indicted for violating the Travel Act

when he extorted private citizens. 393 U.S. 286, 89 S.Ct.

534, 21 L.Ed.2d 487 (1969). The state extortion law didn’t

make that a crime—it only criminalized extorting public

officials, as at common law. Id. at 288-89, 89 S.Ct. 534. But

the Supreme Court said the Travel Act still applied, even

if the state extortion statute didn’t. See id. at 287, 89 S.Ct.

534. Why? Because the state’s “blackmail crime” could

cover the conduct in question. Id. The Court reasoned

that disputes about the state’s labels for criminal conduct

shouldn’t matter. Id. at 293-94, 89 S.Ct. 534. That’s

because the Travel Act’s purpose was to “aid local law

enforcement” in convicting “top men . . . whose influence

extends over State and National borders.” Id. at 293, 29091, 89 S.Ct. 534.

of a committee in advocacy of or in opposition to the adoption of

any ballot proposition or issue, for the purpose of influencing the

employee or agent with respect to the improper discharge of the

employee’s or agent’s campaign duties or to obtain information about

the committee’s campaign organization.” Id.

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Appendix A

But the Court soon appeared to walk back its broad

reading of the Travel Act in Rewis v. United States. 401

U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). Rewis

concerned whether a Georgia resident who crossed state

lines to gamble, in violation of a Florida statute, was

guilty under the Travel Act. The Court said no, because

an expansive reading of the Act would “alter sensitive

federal-state relationships, could overextend limited

federal police resources, and might well produce situations

in which the geographic origin of customers, a matter of

happenstance, would transform relatively minor state

offenses into federal felonies.” Id. at 812, 91 S.Ct. 1056.

Pointing to the legislative history, the Court noted that

Congress “did not intend that the Travel Act should apply

to criminal activity solely because that activity is at times

patronized by persons from another state.” Id. And the

Court emphasized that “ambiguity concerning the ambit

of criminal statutes should be resolved in favor of lenity.”

Id. In Rewis, then, the Court recognized that federalism

and notice principles counseled against stretching the

Travel Act too thin.

Finally, in Perrin v. United States, the Court again

revisited the breadth of the Travel Act. 444 U.S. 37, 100

S.Ct. 311, 62 L.Ed.2d 199 (1979). Perrin considered several

defendants who were convicted of bribing an employee

to steal confidential data from his employer. Id. at 39-40,

100 S.Ct. 311. On appeal, the Perrin defendant, like the

Nardello defendant, argued that “bribery” only referred

to public-official bribery—as at common law—and not

private employees. Id. at 41, 100 S.Ct. 311. In an effort to

distinguish his case from Nardello, the Perrin defendant

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argued that the “federalism concerns” in Rewis meant

courts shouldn’t read the Travel Act’s invocation of state

bribery predicates too broadly. See id. at 49, 100 S.Ct. 311.

But the Court disagreed and reaffirmed Nardello.

The Perrin Court concluded that the Travel Act reflected

Congress’s “clear and deliberate intent . . . to alter the

federal-state balance in order to reinforce state law

enforcement.” Id. at 50, 100 S.Ct. 311. So long as the

defendant’s conduct had an interstate nexus, the Court

explained, courts could uphold convictions under the

Travel Act even if the “bribery” or “extortion” predicate

swept broader than at common law. As the Court put it,

“[i]n defining an ‘unlawful activity,’ Congress has clearly

stated its intention to include violations of state as well as

federal bribery law.” Id. (citation omitted). As in Nardello,

the Court said that Congress intended to sweep beyond

the common law.

Adding all that up, in Nardello, the Court looked to

the conduct at issue, not state labels. 393 U.S. at 293, 89

S.Ct. 534. In Rewis, the Court cautioned against a broad

reading of the Travel Act and declined to transform minor

state-law violations into federal felonies. 401 U.S. at 812,

91 S.Ct. 1056. And in Perrin, the Court focused on the

crime’s interstate nexus. 444 U.S. at 49-50, 100 S.Ct. 311. 3

3. In the forty-six years since Perrin, the Supreme Court

hasn’t revisited or clarified its interpretation of the Travel Act. It

has, however, emphasized Nardello’s expansive reading of the Travel

Act. See Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 40910, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003); Taylor v. United States,

495 U.S. 575, 594-95, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see also

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Appendix A

Applying this framework to Borges’s claim is no small

feat.

Borges raises a compelling argument about his Travel

Act charge. In effect, the federal government’s use of a

state election law turned a statute the state has never

used into a magic bullet to convict Borges.

The crux of Borges’s claim is that federalism and

due-process principles mean the government can’t use a

rarely charged state election law to convict him of bribery.

(Recall that “bribery” is one of the available state law

predicates under the Travel Act. See 18 U.S.C. § 1952(b).)

Start with the statute. The indictment alleged, and

the jury was instructed, that Borges violated the Travel

Act because he violated section 3517.22(A)(2) of the Ohio

Revised Code. That statute is a state election law. It sits

not within the state’s criminal provisions but in a separate

chapter governing elections.

And the statute has procedural protections that

the federal government never pursued. If Ohio wanted

to prosecute a defendant under this law, it would have

to conduct administrative proceedings before it could

ever charge a defendant in Borges’s position. See id.

§ 3517.22(C). Thus, Borges couldn’t be convicted under

this state law without going through an administrati

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