United States v. Ring

• Decision Date: 20 September 2011
• Docket Number: Criminal No. 08–274 (ESH).
• Citation: 811 F.Supp.2d 359
• Parties: UNITED STATES of America v. Kevin A. RING, Defendant.
• Court: U.S. District Court — District of Columbia

811 F.Supp.2d 359

UNITED STATES of America

v.Kevin A. RING, Defendant.

Criminal No. 08–274 (ESH).

United States District Court, District of Columbia.

Sept. 20, 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.

BACKGROUND

On September 5, 2008, a federal grand jury indicted Kevin Ring, a lobbyist who worked with Jack Abramoff, for payment of an illegal gratuity (Count II), honest services wire fraud (Counts III, IV, V, VI, VII, and VIII), and conspiracy (Count I). A jury trial that commenced on September 1, 2009 ultimately resulted in a hung jury on all counts.¹ A second trial commenced on October 18, 2010. Following a two-week trial and four days of deliberations, 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.

Before the Court is the matter of calculating the appropriate sentence for defendant under the Sentencing Guidelines. The parties' respective positions could hardly differ more dramatically. By the government's calculation, Ring's total offense level is 37, corresponding to a Guidelines sentence of 210 to 262 months.² Defendant, however, calculates his offense level as 16, ³ resulting in a Guidelines range of 21–27 months-a difference of approximately 17 years.

Before the Court can proceed to sentencing, it must resolve this stark conflict between the parties, for in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) and Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), a set of procedural requirements have developed that govern sentencing. “A district court begins by calculating the appropriate Guidelines range, which it treats as ‘the starting point and the initial benchmark’ for sentencing.” United States v. Akhigbe, 642 F.3d 1078, 1084 (D.C.Cir.2011) (quoting Gall, 552 U.S. at 49, 128 S.Ct. 586). “Then, after giving both parties an opportunity to argue for whatever sentence they deem appropriate,” the court considers all of the sentencing factors listed in 18 U.S.C. § 3553(a) ⁴ and undertakes “an individualized assessment based on the facts presented.” Id. (citing Gall, 552 U.S. at 49–50, 128 S.Ct. 586).

Given the complexity of the sentencing issues that confront the Court, it ordered the parties to brief the disputed factual and legal issues that must first be resolved, reserving briefing and argument as to the § 3553(a) factors until after a Guidelines range had been determined. Oral argument was held on August 30, 2011.

Ring asserts that he is being penalized for exercising his Sixth Amendment right to trial, arguing that the government should be bound by the prior methodology it has consistently used for calculating the Guidelines sentences of the other Greenberg Traurig lobbyists/coconspirators who were also convicted of honest services fraud. The Court will address this issue first, and then will turn to the host of remaining disputes regarding the calculation of defendant's Guidelines sentence, which include:

1. Whether to apply U.S.S.G. § 2C1.7 (honest services fraud) or § 2C1.1 (bribery) as the applicable offense of conviction.

2. Whether to apply the 2–level enhancement for offenses involving “more than one bribe.” U.S.S.G. § 2C1.1(b)(1).

3. Calculation of the “benefit received or to be received.” U.S.S.G. § 2C1.1(b)(2)(A).

4. Calculation of the “value of the payment” or “value of anything obtained or to be obtained by a public official or others acting with a public official.” U.S.S.G. §§ 2C1.1(b)(2)(A) or 2C1.7(b)(1)(A).

5. Whether to apply the eight-level enhancement for offenses involving “an elected official or any official holding a high-level decision-making or sensitive position.” U.S.S.G. §§ 2C1.1(b)(2)(B) and 2C1.7(b)(1)(B).

6. Whether to apply the 3–level “manager or supervisor” enhancement. U.S.S.G. § 3B1.1.

7. Whether to apply the 2–level enhancement for obstruction of justice. U.S.S.G. § 3C1.1.

8. Whether defendant is entitled to a 2–level reduction for acceptance of responsibility. U.S.S.G. § 3E1.1.

ANALYSIS

I. VIOLATION OF THE SIXTH AMENDMENT RIGHT TO TRIAL

This prosecution arose out of the Jack Abramoff lobbying scandal that first came to light in early 2004. Between 2005 and 2009, Abramoff, along with his fellow lobbyists from Greenberg Traurig—Michael Scanlon, Neil Volz, Todd Boulanger, and Tony Rudy—pled guilty to participating in an influence-peddling and bribery scheme whereby they provided travel, meals, tickets to sporting events, and other things of value to federal public officials, with the expectation that these officials would, in turn, perform official acts on behalf of the lobbyists' clients on an “as-needed” basis. Some of the public officials, including Ann Copland (staffer to Sen. Thad Cochran), John Albaugh (chief of staff to Rep. Ernest Istook), Mark Zachares (aide to Rep. Don Young), former Congressman Robert Ney, and William Heaton (Ney's chief of staff), also pled guilty to honest services fraud for their role in the scheme.

The Guidelines calculations for each of these defendants are detailed in Appendix A. Each of the public official defendants pled guilty to honest services fraud, and for each, the government entered into a plea agreement stipulating to an applicable base offense level under the 2003 Guidelines ⁵ of 10 (under § 2C1.7) plus 8 levels for an offense involving an “elected or high-level decision-making official” (per § 2C1.7(b)(1)(B)) for a total offense level of 18, prior to adjusting for role in the offense or acceptance of responsibility. In addition, Heaton and Zachares received 5K1.1 letters in recognition of their cooperation with government investigators. The government's sentencing recommendations for this group of defendants ranged from six months of home confinement (for William Heaton) to 27 months incarceration for Bob Ney, who was the only elected official charged in this conspiracy and the only one of the many co-conspirators who pled but did not cooperate with the government.⁶

Each of the Greenberg Traurig lobbyist defendants (except for Scanlon and Abramoff) entered into similar plea agreements with the government, whereby Guideline § 2C1.7 and an 8–level “elected official” enhancement was used, resulting in a total offense level of 18 prior to adjustments, including a 3–point reduction for acceptance of responsibility. Of these, only Volz has been sentenced as of this date—the government recommended a sentence “at the low end” of 4–10 months of home confinement. Without taking into account the 5K1.1 letter they are expected to receive for their cooperation, Rudy and Boulanger have agreed to Guidelines calculations that expose them to 24–30 months incarceration and 18–24 months incarceration, respectively.

Scanlon and Abramoff faced higher sentencing ranges under the Guidelines, having been convicted of multiple counts including a kickback conspiracy to defraud Abramoff's clients known as “Gimme Five.” Scanlon's Guidelines range (including a 3–level reduction for acceptance of responsibility) was 51–63 months, while Abramoff faced a range of 108–135 months. The government recommended a sentence of 24 months for Scanlon and an effective sentence of 39 months for Abramoff,⁷ having given both 5K1.1 letters for their cooperation.

As Ring points out, the government now advocates for a Guidelines methodology that it has never asked for before (and that the Court has not previously employed) with respect to calculating the sentences of his co-conspirators. The government urges the Court to apply the cross reference found at § 2C1.7(c)(4) and sentence defendant under the bribery guideline, § 2C1.1—something it has done only for Abramoff and Scanlon (who, unlike Ring, were actually charged with conspiracy to commit bribery in violation of 18 U.S.C. § 201(b)). ( See Dkt. No. 257 at 2.) For each of the other co-conspirators charged with honest services fraud, the government advocated for a Guidelines calculation pursuant to § 2C1.7.

In addition, the government is not seeking to apply the 8–level elected-official enhancement that it applied to the other co-conspirators, including Scanlon and Abramoff.⁸ Instead, it advocates for a 20–level enhancement based on the benefits received by the lobbyists' clients in exchange for the bribes provided to public officials, or in the alternative, a 16–level enhancement based on the value of the bribes paid to the public officials. ( See id. at 6–19.)

Defendant's position is that the government is retaliating against him for exercising his Sixth Amendment right to trial. It is easy to see why such an inference might be justified, since the government's new methodology for calculating defendant's offense level (prior to adjustments for role in the offense and obstruction of justice) would result in a Guidelines sentence of between 121 and 151 months—nearly nine years longer than it would otherwise have been. Even assuming that the § 2C1.1 cross reference applies, the use of the 20–level “value of benefits received” enhancement in lieu of the 8–level “elected official” enhancement translates into an eight-year difference in the ultimate sentence. Indeed, the government's position is that Ring's total offense level (37) should be the highest of all participants in the conspiracy, despite the fact that Abramoff (whose offense level was 34, not including acceptance of responsibility) and Scanlon (whose offense level was 27, not including acceptance of responsibility) were clearly more culpable.

The notion that an ostensibly objective system of sentencing guidelines can produce such wildly varying results for essentially the same offense conduct is deeply troubling, and indeed, as Ring argues, if the Guidelines are “subject to manipulation”...