U.S. v. Ring

• Citation: 768 F.Supp.2d 302
• Decision Date: 11 March 2011
• Docket Number: Criminal No. 08–274 (ESH).
• Parties: UNITED STATES of Americav.Kevin A. RING, Defendant.
• Court: U.S. District Court — District of Columbia

768 F.Supp.2d 302

UNITED STATES of America

v.Kevin A. RING, Defendant.

Criminal No. 08–274 (ESH).

United States District Court, District of Columbia.

March 11, 2011.

Richard A. Hibey, Andrew Todd Wise, Timothy Patrick O'Toole, Miller & Chevalier Chartered, Washington, DC, Matthew T. Reinhard, Anthony & Middlebrook, P.C., Grapevine, TX, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

On September 5, 2008, a federal grand jury indicted Kevin Ring for acts relating to his lobbying work with Jack Abramoff. A jury trial on Counts I through VIII began on September 8, 2009 that ultimately resulted in a hung jury on all counts. Because seven of the eight counts involved violations of the honest-services wire fraud statute, 18 U.S.C. § 1346, the Court continued the retrial pending a decision from the Supreme Court in Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), which was handed down on June 24, 2010.

The second trial commenced on October 18, 2010. Ring was charged with payment of an illegal gratuity (Count II), honest services wire fraud (Counts III, IV, V, VI, VII, and VIII), and conspiracy to pay illegal gratuities and to commit honest services wire fraud (Count I). Following a two-week jury trial and four days of deliberation, the jury returned a verdict of guilty on Counts I, II, III, VII, and VIII and a verdict of not guilty on counts IV, V, and VI.

Ring now moves pursuant to Federal Rule of Criminal Procedure 29(c) for a judgment notwithstanding the jury's guilty verdicts on Counts I, II, III, VII & VIII. In the alternative, defendant moves pursuant to Rule 33 for a new trial. Having heard argument on these motions on March 1, 2011 and having considered the entire record herein, the Court will deny both motions.

ANALYSIS

I. MOTION FOR JUDGMENT OF ACQUITTALA. Rule 29

Fed.R.Crim.P. 29(c) provides that “[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal.” In reviewing a post-verdict motion for judgment of acquittal under Rule 29, a court “must view the evidence in the light most favorable to the verdict.” United States v. Campbell, 702 F.2d 262, 264 (D.C.Cir.1983). Such a motion for judgment of acquittal should be denied when the evidence is “sufficient to permit a rational trier of fact to find all the essential elements of the crime beyond a reasonable doubt.” United States v. Cook, 526 F.Supp.2d 10, 18 (D.D.C.2007), aff'd, 330 Fed.Appx. 1 (D.C.Cir.2009) (quoting United States v. Kayode, 254 F.3d 204, 212 (D.C.Cir.2001)). Typically, the jury's determination will stand unless no reasonable juror could have found a defendant guilty beyond a reasonable doubt. Cook, 526 F.Supp.2d at 18.

B. Honest Services Fraud Does Not Require Evidence of an Explicit Quid Pro

Ring argues that the Court must apply the Supreme Court's decision in McCormick v. United States, 500 U.S. 257, 111 S.Ct. 1807, 114 L.Ed.2d 307 (1991), to this case, thereby requiring the government to prove an explicit quid pro quo agreement in order to prove honest-services fraud. (Defendant's Motion for Judgment of Acquittal [“MJOA”] at 7–12.) In McCormick, the Supreme Court held that campaign contributions enjoyed protection under the First Amendment, and therefore could not service as the basis for a criminal conviction without proof of an explicit quid pro quo. McCormick, 500 U.S. at 273, 111 S.Ct. 1807. The Court, however, explicitly did “not decide whether a quid pro quo requirement exists in other contexts, such as when an elected official receives gifts, meals, travel expenses, or other items of value.” Id. at 274 n. 10, 111 S.Ct. 1807. Ring argues that McCormick should apply not only to campaign contributions, but also to cases where evidence of illegal activity was “inextricably intertwined with abundant legal lobbying activity.” (MJOA at 9.) Defendant therefore contends that “an explicit quid pro quo standard should have applied even if all evidence of campaign contributions had properly been excluded.” ( Id.) Otherwise, defendant cautions, “the absence of a bright, concrete line between legal and illegal [conduct] ... would make it too easy for jurors to criminalize constitutionally-protected conduct.” ( Id. at 10.)

As it held prior to the retrial here ( see Aug. 5, 2010 Tr. at 82), the Court declines defendant's invitation to extend McCormick beyond campaign contributions. Such a remedy is neither required by supposed danger of jury confusion nor supported by case law.

The Court provided the jury with repeated McCormick instructions throughout the trial to ensure that defendant was not being held criminally responsible for activity protected by the First Amendment. Each time that evidence or testimony touched on a campaign fundraiser or campaign contribution, the Court instructed the jury as follows:

Campaign contributions and fundraising are an important, unavoidable and completely legitimate part of the American system of privately-financed elections. The law recognizes that virtually every campaign contribution is given to an elected public official because the given supports the acts done or to be done by the elected official.

The Supreme Court of the United States has recognized that legitimate honest campaign contributions are given to reward public officials with whom the donor agrees, and in the generalized hope that the official will continue to take similar official actions in the future.

Lobbyists often donate to the political campaigns of public officials and there is nothing illegal about this practice. Official acts that advance the interest of a lobbyist's clients, taken shortly before or after campaign contributions are solicited or received from the lobbyist, can, depending on the circumstances, be perfectly legal and appropriate.

In this case, the propriety or legality of campaign contributions or fundraisers is not before you, and you are, therefore, instructed not to consider campaign contributions or fundraisers as part of the illegal stream of benefits that Mr. Ring is charged with providing to certain public officials.

( See, e.g., Oct. 25, 2010, A.M. Tr. at 22–23:7–9; Nov. 3, 2010 P.M. Tr. at 34–35.) Indeed, the Court repeatedly, and over the government's strenuous objection, informed the jury that they could not consider campaign contributions as part of the illicit stream of value in this case under any circumstances whatsoever. ( See, e.g., Oct. 26, 2010 A.M. Tr. at 15:13–16; Nov. 3, 2010 A.M. Tr. at 59:19–20.) These instructions were also incorporated into various jury instructions as well. ( See Dkt. No. 222 at 28–30 [Jury Instruction Nos. 27–29].) In sum, although the Court allowed the jury to hear evidence of campaign contributions, the jury was repeatedly instructed that it could not consider such evidence as part of the illicit stream of value—and the Court presumes, as it must, that the jurors followed the instructions they were given. See United States v. Mouling, 557 F.3d 658, 665 (D.C.Cir.2009) (citing Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)).

Moreover, numerous circuits have held that McCormick's explicit quid pro quo requirement does not extend to things of value other than campaign contributions. See United States v. Kincaid–Chauncey, 556 F.3d 923, 937 (9th Cir.2009); United States v. Whitfield, 590 F.3d 325, 352–53 (5th Cir.2009) ¹; United States v. Ganim, 510 F.3d 134, 146–47 (2d Cir.2007); United States v. Kemp, 500 F.3d 257, 281 (3d Cir.2007). And while the Supreme Court recently held in Skilling v. United States, –––U.S. ––––, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), that 18 U.S.C. § 1346 criminalizes only schemes to defraud involving bribery or kickbacks, it did not expand the scope of McCormick, as Ring now urges this Court to do, nor is there any basis to conflate the requirements of McCormick and Skilling, as Ring has done. See United States v. Urciuoli, 613 F.3d 11, 13, 15 n. 3 (1st Cir.2010) (citing holding in Kincaid–Chauncey that quid pro quo bribe need not be evidenced by any express agreement or statements of intent).

For these reasons, this Court has previously rejected Ring's previous arguments in favor of expanding the scope of McCormick to extend to things of value other than campaign contributions. See Aug. 5, 2010, P.M. Tr. at 82:9–14 (“I think there's ample authority that the quid pro quo bribery can be inferred from the evidence. You don't need a specific explicit agreement.”); id. at 30:21–32:6 (“The First Amendment allows you to make campaign contributions and protects that, and so they require explicit quid pro quo.... I don't see how that carries to some kind of First Amendment protection for ... showering people with tickets to the [W]izards.... Kincaid and Kemp and the First Circuit in [ Urciuoli ] ... all say you don't need an explicit agreement.”).²

C. Implicit Quid Pro Quo / Sufficiency of the Evidence

Defendant raises a number of arguments in an attempt to attack the sufficiency of the government's evidence of an implicit quid pro quo. As a general matter, Ring's attack on the sufficiency of the evidence is a selective, one-sided attack on particular pieces of evidence, and as such does not faithfully hew to Rule 29, which requires the Court to consider all of the evidence in the light most favorable to the verdict.

Ring attempts to distinguish this case from Whitfield, 590 F.3d 325, Ganim, 510 F.3d 134, and Kemp, 500 F.3d 257, by comparing the “rare and costly” gifts provided by the defendants in those cases with the relatively inexpensive meals and tickets at issue here. (MJOA at 16.) As the government has correctly pointed out, such an argument confuses evidence sufficient to obtain an honest-services fraud conviction with evidence necessary to obtain such a conviction. ( See Government's Response to Motion for Judgment of Acquittal at 18–19.) These cases simply do not stand for the proposition Ring...