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.
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.
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.
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.)
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:
(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)
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.").
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 urges: that gifts that nonetheless meet the definition of "things of value" can be sufficiently inexpensive that they cannot imply the existence of a quid pro quo as a matter of law. Moreover, the fact that free meals and tickets were "commonplace lobbying
Ring attacks the sufficiency of the evidence relating to David Lopez's trip to Puerto Rico, arguing that "the evidence barely showed that Mr. Lopez went to Puerto Rico at all, much less that the trip was a quid pro quo bribe." (MJOA at 24.) As an initial matter, the Court notes that no specific count was predicated on this trip—and thus the government's failure to prove that it constituted a quid pro quo bribe would not necessarily require a judgment of acquittal on any count. Regardless, Ring's argument suffers from a more serious flaw. The government was not required to prove what Lopez actually did or did not do on the trip to Puerto Rico. The relevant issue is whether Ring intended to bribe Lopez. And the government certainly provided the jury with sufficient evidence in the form of emails between Ring and Jack Abramoff from which such intent could be inferred. (See, e.g., GX-KR 225; GX-KR 226.)
Similarly, Ring attacks the government's evidence that he and Jack Abramoff provided Julie Doolittle with a "little- or no-work job" by focusing primarily on the lack of evidence regarding what work Ms. Doolittle did or did not do. This misses the point. Ring was charged with participating in a scheme to defraud, the object of which was for Ms. Doolittle to be paid for doing little or no work. Again, the relevant issue is the intent of defendant and his co-conspirators in setting up the job, not whether Ms. Doolittle in fact "worked sufficiently hard for her money" after she had been given the job. (MJOA at 21.) In addition, Ring attacks his conviction on Count VIII based on what he argues was his own limited involvement in setting up the job for Ms. Doolittle. (MJOA at 19-20.) This argument fails to appreciate the nature of a "scheme to defraud," as charged in Count VIII. Honest-services fraud requires only that the government prove participation in a scheme to defraud, and that Mr. Ring participated in that scheme. Defendant's personal involvement with the details of setting up the job for Ms. Doolittle is irrelevant.
Ring continues to argue that Skilling requires an honest-services bribery scheme to be successful, in that it requires participation of a public official in the scheme. Thus, defendant reasons, the government's failure to show "active participation" in the scheme by a public official by means of "acceptance of bribes or kickbacks" should prove fatal to its case. (MJOA at 3; Dkt. No. 155 at 25, 31-32.) The Court has repeatedly rejected this argument, because it is abundantly clear that honest-services fraud punishes a "scheme to defraud," as opposed to the completed fraud itself. See United States v. Potter, 463 F.3d 9, 16 (1st Cir.2006) (holding that public official does not have to participate in the scheme to establish honest-services fraud by private individuals); Pasquantino v. United States, 544 U.S. 349, 371, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005) ("The wire fraud statute punishes the scheme, not its success." (citations and quotation marks omitted)).
Indeed, this Court has previously held:
United States v. Ring, 628 F.Supp.2d 195, 219 (D.D.C.2009). A similar analysis applies to federal bribery statutes. While 18 U.S.C. § 201(b)(1) prohibits offering bribes, 18 U.S.C. § 201(b)(2) prohibits accepting them. While Ring correctly notes that Skilling limited the scope of honest-services fraud to cases involving bribery or kickbacks, it did not, as defendant suggests, somehow require simultaneous proof of § 201(b)(1) and (b)(2) in order to successfully prove honest-services fraud.
In essence, defendant's position appears to be premised on an attack on the "retainer" or "stream of value" theory of honest-services bribery. This Court has previously rejected this attack, Ring, 628 F.Supp.2d at 210 (citing Kemp and Ganim), and this prior ruling was not disturbed by Skilling, which cited with approval the same honest-services cases relied upon by this Court. Skilling, 130 S.Ct. at 2934. The Court therefore similarly rejects Ring's attempt to establish a test for honest-services fraud that would require the testimony of a public official in order to secure a conviction. The government is entitled, as it has done here, to rely on cooperators and internal emails from which the jury can infer the existence of a scheme to defraud. Defendant's insistence that the government establish its case in some other manner than the one it chose is inconsistent with Rule 29, which requires the Court to consider all the evidence in the light most favorable to the government.
Ring argues that the government failed to establish sufficient evidence "to establish Mr. Ring's knowing and intentional joinder" in a conspiracy agreement. (MJOA at 26.) In support of this argument, Ring asserts that "[w]hat would be evidence of a conspiracy is testimony or evidence concerning Mr. Ring's communications from which his joinder into a conspiracy could rationally be inferred." (Id. at 27.) Unfortunately for Ring, the government has done just that, and presented the jury with numerous email exchanges between Ring and his co-conspirators and from which the jury could rationally infer that the defendant joined a conspiracy to commit honest-services fraud and illegal gratuities. See, e.g., GX-KR 225-26 (emails between Ring and Abramoff setting up trip for David Lopez); GX-KR 341 (emails between Ring and Abramoff regarding basketball tickets for Robert Coughlin); GX-KR 553 ("I hate when we spend all that money and don't get any return on our investment.").
Finally, defendant argues that the government's evidence of an illegal gratuity was insufficient as a matter of law. First, Ring renews his earlier assertion that Coughlin did not perform an "official act" as defined by Valdes v. United States, 475 F.3d 1319 (D.C.Cir.2007) (en banc). (MJOA at 28-29; MJOA Reply at 2.) This Court previously addressed this argument in response to defendant's Motion to Dismiss, ruling that Coughlin's actions as alleged by the indictment met the definition of an "official act" under Valdes. United States v. Ring, 628 F.Supp.2d 195, 204-06 (2009). Having considered the evidence presented to the jury, the Court declines to reverse its previous ruling on this question.
Ring also challenges the sufficiency of the evidence on the substantial causation
Rule 33 of the Federal Rules of Criminal Procedure provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). "The Rule does not define `interests of justice' and the courts have had little success in trying to generalize its meaning." United States v. Cabrera, 734 F.Supp.2d 66, 87 (D.D.C.2010) (quoting United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir.1989)). "Nevertheless, courts have interpreted the rule to require a new trial `in the interests of justice' in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial." Id. A defendant has a heavy burden under Fed.R.Crim.P. 33(a). "[T]he evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand. . . . This power should be exercised with caution, and is invoked only in those exceptional cases in which the evidence weighs heavily against the verdict." United States v. Howard, 245 F.Supp.2d 24, 30 (D.D.C.2003) (quoting United States v. Edmonds, 765 F.Supp. 1112, 1118 (D.D.C.1991)).
Ring falls far short of the mark in his attempt to meet his "heavy burden" under Rule 33. He begins by attacking the government's frequent use of "intent to influence" and "intent to reward" as incorrect statements of the governing legal standards. This argument is fundamentally flawed for a number of reasons. As an initial matter, Ring's argument depends on the assumption that the jury did not follow the Court's instructions and instead chose to rely on the government's description. This is not the law. Rather, it is assumed that juries follow the instructions they are given, and there is absolutely no indication here that that did not happen. See Mouling, 557 F.3d 658, 665 (citing Richardson, 481 U.S. 200, 211, 107 S.Ct. 1702).
Moreover, defendant's characterization of the proper legal intent is erroneous and contrary to the final jury instructions. Defendant continues to contend that "unilateral" or "one-sided" intent is insufficient, and therefore, he essentially argues that he can only be convicted of honest-services fraud if the government proves that scheme to defraud was successful and that the public official agreed to the scheme. As this Court has repeatedly held, this view of honest-services fraud is incorrect as a matter of law. See Dkt. No. 222 [Jury Instruction 42] ("[T]he defendant must intend to receive an official act in return for the receipt by the public official of a thing of value. . . . It is not necessary for the government to prove
Nor was it error for the government to use evidence of campaign contributions in its case. The jury was given repeated and clear McCormick instructions each time such evidence was elicited, and as previously held, the jury was told what use it could make of this evidence, so there was no legal basis for its total exclusion on the basis of the possibility of confusion. Again, there is simply no reason to conclude that the jury was incapable of following the Court's instructions.
Similarly, defendant contends that he is entitled to a new trial because the government "prevent[ed] jurors from receiving clear guidance about the quid pro quo bribery standard it was compelled to meet by the Supreme Court's Skilling decision" and "successfully prevented application of the explicit quid pro quo standard of McCormick v. United States." It is not error for the government to argue in favor of its preferred interpretation of the law, particularly where, as here, its interpretation is correct. See supra Part I.B.
Ring next demands a new trial based on the government's improper question to Mr. Volz, falsely suggesting that the government was in possession of certain evidence. This single event occurring in the middle of a ten-day trial does not rise to the level of prejudice necessary to warrant a new trial. Not only was it immediately followed by curative instructions from the Court (Oct. 27, 2070 A.M. Tr. at 106:7-10), but in addition, the jury was properly instructed that statements and questions by counsel are not evidence. (Dkt. No. 222 at 10 [Jury Instruction 10].)
Ring chides the government for its "refus[al]" to call any public officials to testify, instead relying on the testimony of two co-conspirators. Of course, the government may not argue materially false statements to the jury that it knows to be false, or suborn perjury from what witnesses it does call. See United States v. Reyes, 577 F.3d 1069 (9th Cir.2009).
Finally, it was not misconduct for the government to successfully object to defendant's attempt inform to the jury that Congressman Doolittle had not been criminally charged. As the Court previously held in sustaining this objection (see Oct. 26, 2010 P.M. Tr. at 28-30), such evidence is simply not probative of defendant's argument that Volz's relationship with Congressman Ney was not comparable to Ring's relationship with Congressman Doolittle, and therefore there is no basis to invoke the doctrine of curative admissibility.
For the foregoing reasons, the Court denies defendant's motion for a judgment of acquittal and his motion for a new trial. A separate order accompanies this Memorandum Opinion.
