Bitter Pill

Jennifer Yachnin of Roll Call ($) reports on a curious development related to Kevin Koonce, a former Legislative Director for Sen. Judd Gregg (R-N.H.):

A former top aide to Sen. Judd Gregg (R-N.H.) who became a subject of the wide-ranging influence-peddling probe centered on ex-lobbyist Jack Abramoff is seeking an internal review of a Justice Department prosecutor, accusing the federal investigator of professional misconduct.

Kevin Koonce, who worked as Gregg’s legislative director from 2002 to 2004 before leaving Capitol Hill, provided Roll Call with a copy of the complaint he filed with the DOJ’s Office of Professional Responsibility in late December.

In that three-page letter, Koonce accuses prosecutor Kendall Day, a trial attorney in DOJ’s Public Integrity Section, of “harassment, prosecutorial misconduct, and abuse of power” during the department’s investigation into him in 2009.

Despite the allegations of “harassment, prosecutorial misconduct, and abuse of power,” Mr. Koonce was never charged with any crime.

We're left to wonder what exactly Mr. Koonce accuses Kendall Day of doing wrong. We only get the vaguest of allegations in this harassing complaint filed with the DoJ's Office of Professional Responsibility. As Ms. Yachnin reports in her article, very few complaints result in a finding of misconduct, and virtually no complaints not filed via "judicial reviews or referrals" even make it to a formal investigation. Mr. Koonce may find his actions emotionally satisfying, but ultimately, we don't think his complaint will lead to any formal investigation.

Mr. Koonce is upset that he was indirectly identified as "Staffer F" in Todd Boulanger's Factual Basis for Plea. He grumbles "[I]t took the media, my bosses, the blogosphere, and my professional colleagues less than a day to deduce that ‘Staffer F’ was in fact ‘Kevin Koonce.’"

“Todd thought everyone that accepted tickets was working for him, and that just wasn’t the case,” Koonce said in an interview. “I never did anything in the office that I thought was wrong, never mind illegal. ... I was a guy who was like thousands of other staffers.”

As we've said many times before, we don't like the "Everyone does it" defense that Mr. Koonce employs here. As to whether or not Mr. Koonce did anything wrong, we'll let you, gentle reader, make that determination. From Mr. Boulanger's Factual Basis:

a. On September 27, 2002, defendant BOULANGER emailed Staffer F that it was good to see him the other night and seeking Staffer F's help in preserving a $3.5 million earmark that was favorable to one of BOULANGER's lobbying clients, which earmark had been included in the House version of a defense appropriations bill.

We don't know if Mr. Koonce actually helped preserve the $3.5 million earmark, but if he did, it would be convincing evidence that Mr. Koonce is not a member of the conservative Tea Partier wing of the Republican Party.

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b. On January 22, 2003, defendant BOULANGER emailed Staffer F seeking his help in defeating a proposed amendment to a defense appropriations bill which would have enabled an Alaskan entity to establish a gambling casino, thereby threatening the market share of Native American tribes represented by Firm B which already owned or operated gambling casinos. Staffer F responded to defendant BOULANGER that he would tell his Senator and that his office had the proposed amendment "flagged."

We wonder why Mr. Koonce allegedly helped one of Team Abramoff's clients this way.

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c. On February 14, 2003, Staffer F emailed defendant BOULANGER asking if he could "score some hockey tickets." Defendant BOULANGER forwarded the email to one of Abramoff s assistants noting, "[Staffer F] is a priority," and requesting, "Ice seats if possible." Defendant BOULANGER then responded to Staffer F that Staffer F was getting front row hockey tickets, telling him, "This is without a doubt the most in demand game of the season.... You, my friend, are in debt to me for a while!" Several days later, Staffer F replied, "Thanks [BOULANGER] - You the man. I got something for you too...."

Judging from this passage, it looks like Mr. Koonce pays his debts in a timely manner.

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d. On April 1, 2003, defendant BOULANGER emailed one of Abramoff's assistants, asking if he could get two baseball tickets to an upcoming Redsox/Orioles baseball game for Staffer F, along with a parking pass, noting. "[Staffer F] is important." On April 2, 2003, Staffer F emailed defendant BOULANGER, "thanks for thinking of me for the sox. Let me know if I can return the favor..."

Just how did Mr. Koonce intend to "return the favor"?

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On October 23, 2003, defendant BOULANGER emailed Abramoff that a potential client wanted to retain him to help with favorable action from the Senator for whom Staffer F worked. Defendant BOULANGER wrote, "easy money. [Staffer F] practically lives in our various suites. We are shady."

OK. So this one doesn't allege any acts by Mr. Koonce. But it certainly shows how Mr. Boulanger thought of Mr. Koonce.

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Let's wrap up with this quote from Ms. Yachnin's article:

Koonce also accused the Justice Department of targeting him for prosecution as a “trophy,” noting that in January 2009 his former boss, Gregg, was preparing for his confirmation as secretary of Commerce, which he subsequently declined for unrelated reasons.

First, the DoJ declined to prosecute Mr. Koonce precisely because he wasn't a trophy. As we've opined many times before, we here at the ACR Blog never understood why the DoJ gave Mr. Koonce as much attention as they did since Mr. Koonce was likely not in a position to help the DoJ build cases against bigger fish.

Mr. Koonce is also off base when he connects his fate to his former boss's nomination to be Secretary of Commerce. On the very day that the AP identified Mr. Koonce as Staffer F, the ACR Blog discouraged its readers from drawing the inference that Sen. Gregg was implicated in this matter. In the broader scandal context, it seems most likely that the DoJ began to look at Mr. Koonce as a result of the plea agreements of James Hirni (November 21, 2008) and Todd Boulanger (January 15, 2009). Both of these events occurred before the first reports that President Obama was considering Sen. Gregg for Secretary of Commerce (January 29, 2009).

Since we believe that Mr. Koonce's complaint is without merit, we don't expect it to be newsworthy in the future. And if this is the last time we mention Kevin Koonce, it'll be just fine by us. Mr. Koonce says he's been "waiting for this to go away". If only he would just let it go away.

January 7, 2010: John Albaugh Status

U.S. District Judge Ellen S. Huvelle has scheduled a status conference for Thursday in U.S. v. John Albaugh. Of course, this isn't the first time a status conference has been scheduled in this case. In the past, though, the status conference has been deferred. Judging from a document filed by Mr. Albaugh's attorney last week, Thursday's status hearing will not be deferred. Jeffrey Jacobovitz, Mr. Albaugh's attorney, indicated to Judge Huvelle that he was prepared to attend the status hearing.

Back in the summer, the Justice Department anticipated setting a sentencing date for Mr. Albaugh by the end of 2009. Since then, Judge Huvelle has strongly urged the DoJ to sentence defendants in the greater Jack Abramoff scandal. Don't be surprised if we emerge from Thursday's status conference with a sentencing date for Mr. Albaugh.

USA v. Kevin Ring: Duty to Disclose

Related Posts:

Kevin Ring Retrial Prognostication
Kevin Ring's Motion for Judgment of Acquittal

USA v. Kevin Ring: Get Ready for a Retrial!
Government's Opposition to Ring's Motion for Judgment of Acquittal

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Kevin Ring has been indicted on six counts of Honest Services Fraud (HSF) and another count of conspiracy to commit HSF¹. Prosecutors must show an element of material misrepresentation and/or intentional concealment in order to convict Mr. Ring of HSF. Justice Department lawyers alleged several instances of intentional concealment in their Opposition to Ring's Motion for Judgment of Acquittal (MJOA).

On Monday, Mr. Ring's attorneys replied to the DoJ's opposition to his MJOA. Mr. Ring's basic argument is that Mr. Ring had no duty to disclose the information that the DoJ says he intentionally concealed. If there was no duty to disclose, Ring's attorneys say, the concealment can not support an HSF conviction.

There are two ways to successfully prove HSF: (1) The Bribery Theory; and (2) The Failure-to-Disclose a Conflict of Interest Theory. Case law is clear on this. Here is how the Third Circuit described HSF in United States v. Chartock, a case actually cited by the defense:

Honest services fraud can be proven in two ways: "(1) bribery, where a legislator was paid for a particular decision or action; or (2) failure to disclose a conflict of interest resulting in personal gain." The Government concedes that "to convict a private citizen, such as Chartock, of the failure to disclose a conflict of interest theory of honest services fraud, the government must introduce sufficient evidence to prove that the private citizen was aware that the public official was required to disclose their relationship and that the private citizen knowingly assisted the public official in the failure to disclose." [Citations omitted, emphasis added]

Notice that the government needa to show a duty to disclose only in the Failure-to-Disclose Theory of HSF. Mr. Ring is charged with HSF under the Bribery Theory. The defense is conflating two theories and reaches a conclusion that is not supported by case law. Similar case law exists in United States v. Kemp also decided by the Third Circuit. The Justice Department cited Kemp to support its position, and we've previously examined how Kemp is damaging to Mr. Ring's defense because it doesn't require the government to show that a specific item of value is connected to a specific official act. Kemp also distinguishes between the Bribery Theory of HSF and the Failure-to-Disclose Theory of HSF:

Honest services fraud, in turn, typically occurs in either of two situations: “(1) bribery, where a [public official] was paid for a particular decision or action; or (2) failure to disclose a conflict of interest resulting in personal gain.”

Prosecutors in Kemp alleged both types of HSF. And the Court indeed examined whether there was a duty to disclose -- but only with respect to the Failure-to-Disclose Theory. The Court did not apply the duty to disclose to the Bribery Theory part of the case.

The ACR Blog is usually shy about delving too deeply into case law. It simply isn't one of our strengths. But Ring's argument that there must be a duty to disclose an intentional omission in a Bribery Theory of HSF does not accurately reflect the law. The defense should not be able to conflate the two theories of HSF in order to raise the bar for the DoJ.

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¹ Count II of Mr. Ring's indictment is an illegal gratuity charge that is not addressed in the MJOA.

Financial / Travel Disclosures for Dan Flynn

Daniel P. Flynn is a former high-level staffer in Tom DeLay's old Congressional office. Mr. Flynn originally came to the attention of the ACR Blog due to his service in Mr. DeLay's so-called "War Room". Mr. Flynn was a potential witness in Corwin Teltschik's ARMPAC-related civil suit. Beyond that, Mr. Flynn has escaped our scrutiny.

Recently, though, the ACR Blog has received some abstruse intimations that perhaps we should investigate Mr. Flynn's financial and travel disclosures submitted when he worked in the House of Representatives. Dutifully, we reviewed Legistorm.

TRAVEL

According to Legistorm, Mr. Flynn submitted disclosure forms for 11 privately funded trips. Ten of the trips were sponsored by the Congressional Institute, Inc., whatever that is. The 11th was a February 2005 trip to Las Vegas sponsored by an outfit called the Congressional Economic Leadership Institute (CELI). We don't know much about this trip except that The Hill reported on it in an article entitled "Las Vegas: Junket or 'study trip'". Also, we know that former Bob Ney staffer and Scotland vacationer Paul Vinovich was on the same trip. This may or may not be relevant. Over the years, CELI has sponsored scores and scores of trips for Hill staffers, including Elizabeth Megginson (Don Young), Fraser Verrusio (Don Young) (2), Jonathan Grella (Tom DeLay), Justin Sprinzen (Don Young), Carl Thorsen (Tom DeLay), Levon Boyagian (Don Young) (3), and Lloyd Jones (Don Young). With a diverse set of travelers, we're not sure it is worthwhile to investigate the CELI any further. It doesn't appear that CELI has funded any trips since 2006 anyway. Our vague hint remains elusive.

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FINANCIAL DISCLOSURES

Legistorm helpfully provides us with two of Mr. Flynn's financial disclosures:

2006 Annual Disclosure

2006 Termination

We're not sure what we're supposed to see in the financial disclosures, either. It might be helpful to review pre-2006 disclosures, but those aren't on Legistorm. Ultimately, this is a dead-end for us, too. All we can do is pass along the tip to you, our readers, and hope that one of your can help us out. Feel free to email us at gregintx22-at-yahoo-dot-com. Discretion assured.

Merry Christmas

Christmas Address
Ronald Reagan
December 23, 1981

We here at the ACR Blog hope that everyone has had safe travels and has arrived home in time for Christmas.

The author of the ACR Blog has learned a lot from the blog's readers. Throughout the year, many of you have generously given me tips and other information, and that has helped in my understanding of the subject matter of this blog. For that, I am extremely grateful.

So from the Anti-Corruption Family to yours, have a very Merry Christmas.

U.S. v. Fraser Verrusio: Motion Orders

Last Friday, U.S. District Judge Richard W. Roberts issued rulings on motions filed by the defense in U.S. v. Fraser Verrusio as well as one non-controversial joint scheduling motion. We'll only address the three contested defense motions.

Motion for Bill of Particulars: Heard and DENIED.

Our understanding of a Bill of Particulars is that it is a document detailing the alleged criminal activity in very specific terms. The Defense had asked for a Bill of Particulars; apparently Judge Roberts determined that the case as outlined in the indictment is sufficient.

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Motion to Dismiss Count One of the Indictment OR, in the Alternative, for a Pre-Trial Hearing to Determine the Admissibility of Co-Conspirator Statements: Heard and DENIED as to the Pretrial Portion only.

We interpret Judge Roberts' silence on the Dismissal portion to mean that he is reserving judgment on that part. Mr. Verrusio's basic argument in asking for a dismissal of Count 1 (Conspiracy to Obtain Illegal Gratuities) of the indictment is that the alleged receipt of a single thing of value (the World Series trip) can not support a conspiracy charge.

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Motion to Dismiss Case: The court reserves on counts 1 & 2 and as to Count 3; heard and DENIED.

Count 3 is a false statement charge related to an alleged omission on a financial disclosure form submitted by Mr. Verrusio. Mr. Verrusio allegedly failed to list receipt of a trip to New York for the 2003 World Series as a gift. That count remains intact.

Judge Roberts reserved judgment on Count 1 (Conspiracy to Obtain Illegal Gratuities) and Count 2 (Illegal Gratuity). Mr. Verrusio observes that an illegal gratuity must be accompanied by an official action. He claims that he did not perform an official act in exchange for the alleged World Series trip. Here are the acts the indictment alleges Mr. Verrusio performed:

19. On October 22, 2003, Hirni emailed to defendant VERRUSIO information about the three amendments that Equipment Rental Company was seeking to insert in the Federal Highway Bill.

20. On October 27, 2003, defendant VERRUSIO emailed Himi, apologizing for not responding sooner to Himi's October 22 email about the three amendments sought by Equipment Rental Company, telling him that the amendments needed more work "for anyone to be able to help with progress...," and informing Hirni that defendant VERRUSIO was "around this week." ....

22. In January 2004, defendant VERRUSIO, Blackann, Boulanger, Hirni, and Person #1 took steps to protect the Equipment Rental Amendment, which by that time had been inserted into the Senate version of Federal Highway Bill, from a challenge being mounted by small business owners and companies which sold and distributed - rather than rented - construction equipment (the "Equipment Distributors"). The steps taken to protect the Equipment Rental Amendment included, among other things, the following:

c. In January 2004, defendant VERRUSIO met with Boulanger in his Congressional office and suggested that Boulanger organize a letter writing campaign from the owners and operators of individual Equipment Rental Company facilities to Congressional members, in order to counter the Equipment Distributors' efforts to oppose the Equipment Rental Amendment.

d. In January 2004, defendant VERRUSIO suggested to Hirni that Hirni organize a letter writing campaign from the owners and operators of individual Equipment Rental Company facilities to Congressional members, in order to counter the Equipment Distributors' efforts to oppose the Equipment Rental Amendment.

You make the call. Do those acts rise to the level of an "official act"?

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Somewhat amusingly perhaps, attorneys for Mr. Verrusio appear to see an alleged "official act" in the Illegal Gratuity charge in Kevin Ring's indictment. From Mr. Verrusio's Motion to Dismiss:

[I]n United States v. Ring, the defendant Kevin Ring allegedly violated the antigratuity statute by giving a gratuity to a public official because the official had attempted to expedite an INS review. There ... the court catalogued the many specific official acts that the public official had allegedly taken in connection with the gratuity charge.

In contrast to ... Ring, the Indictment in this case fails to allege that Mr. Verrusio engaged or planned to engage in any official acts.

Heh-heh.

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***UPDATE***
December 25, 2009

Occasionally commenters will chide the ACR Blog for its overt bias toward the Department of Justice with respect to the Abramoff scandal. Well, it seems that we haven't fully portrayed the DoJ's position in U.S. v. Fraser Verrusio. There obviously was a response to Mr. Verrusio's Motion to Dismiss. In it, the DoJ offers the most persuasive of the alleged "official acts" performed by Mr. Verrusio:

As specified in the discovery previously provided to the defendant, the government will offer another specific example of the assistance to be provided by Verrusio, namely that Verrusio agreed to insert the amendments at the conference committee stage for the Federal Highway Bill.

The insertion of amendments at the conference committee stage is undeniably an official act. As to why the DoJ merely "specified" this in discovery materials and didn't specify it in the indictment is unknown. Judge Roberts will have to decide whether this is sufficient notice to Mr. Verrusio.

USA v. Kevin Ring: Get Ready for a Retrial!

Kevin Ring borrows a red cup while
visiting Todd Boulanger's home

On Friday, the Justice Department filed its response (.pdf) to Kevin Ring's Motion for Judgment of Acquittal (MJOA). We've been eagerly waiting for this document for two basic reasons. First, we believed that the "vigor" of the Government's Response would tell us whether the DoJ was serious in pursuing a retrial against Mr. Ring. The second reason was that we also had some concerns as to whether the the DoJ might have lost confidence in the Honest Services Fraud (HSF) law.

It would appear that our fears were misplaced. The Justice Department filed a strong response to Mr. Ring's MJOA and robustly defended the HSF law.

In our opinion, the most significant point raised by Mr. Ring's attorneys in the MJOA was that the Justice Department had failed to prove the required element of material misrepresentation / intentional concealment during his September trial. While we have expressed some concerns about aspects of the prosecutorial strategy of the DoJ, we've always been confident that the DoJ had met the burden of showing a material misrepresentation. The Government's Response makes a strong case that there were multiple material misrepresentations by Mr. Ring and his alleged co-conspirators:

1. Disguising Description of Things of Value. According to the DoJ, Mr. Ring disguised the description of things of value when he referred to event tickets as "fruit" when communicating with Jennifer Farley. This first example provided by the government in its response has long been one of our favorites. We specifically mentioned this misrepresentation in our material misrepresentation post. (Govt Response, pp. 7-8)

2. Concealment of Conversations with Co-conspirators. Specifically, the government shows that Mr. Ring asked David Mielke, a lawyer for the Sandia Pueblo, to delete an email recounting a conversation with co-conspirator John Albaugh, an aide to U.S. Representative Ernest Istook (R-Okla.). Mr. Ring also told Jack Abramoff that sending emails to official White House officials "might actually limit what they can do to help us." (Govt Response, pp. 8-9)

3. Disguising the Recipients of Things of Value. According to the DoJ, Mr. Ring would not identify the names of public officials receiving things of value, often using vague terms such as "conservative activist" on expense reports. While Judge Huvelle didn't seem convinced that concealing this information on expense reports would meet the standard of "intentional concealment", we have stated our belief that it does (of course her opinion is far more important than ours). According to the testimony of Team Abramoff member Neil Volz, Mr. Ring would not identify staffers he took to games because he didn't want to put the public officials "in a bad spot". Mr. Ring's motivation seemed to be to protect the public officials, not to protect Greenberg Traurig. A reasonable person could conclude that the "bad spot" the public official might be placed in was having to explain an incomplete disclosure form. (Govt Response, pp. 9-11)

4. Concealment of Real Motivations. In our opinion, the weakest of the government's arguments is that Mr. Ring helped public officials hide the true motive for taking public actions. The example provided by the DoJ involves Mr. Ring's efforts to get Rep. John Doolittle (R-Calif.) to introduce a bill to make Puerto Rico the 51st state. In order to show that Mr. Doolittle had an interest in Puerto Rico statehood, Mr. Ring proposed sending Mr. Doolittle and/or his staffers on a trip¹ to the island. The author of the ACR Blog believes that when people make decisions, there are often multiple motivations responsible for whatever the final decision may be. Isolating a single motivation may not be possible. However, viewing this matter in a light most favorable to the prosecution, it is possible that a reasonable juror might conclude that the "real motivation" of Mr. Doolittle's interest in Puerto Rico may have been the trip provided by Greenberg Traurig.

Overall, we believe the Justice Department provided a strong case showing several material misrepresentations / intentional concealments. More importantly, Judge Huvelle needs to be persuaded on only one of the theories advanced by the DoJ to deny Mr. Ring's MJOA. The ACR Blog finds 3.5 of the 4 material misrepresentations offered by the DoJ to be convincing. (Sorry, DoJ, we just couldn't give full credit to #4.)

Therefore, we predict that Judge Huvelle will find that the government has met its burden to show material misrepresentation, and that she will deny the MJOA.

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¹ The only public official to actually travel to Puerto Rico was David Lopez, a staffer for Mr. Doolittle. Kathy Lopez, Mr. Lopez's wife, accompanied him. Mr. Ring didn't want Mr. and Mrs. Lopez to have too many scheduled visits or activities on the trip. Mr. Abramoff said they didn't have to have any scheduled activities. (Ring Indictment; Paragraph 95). This sounds like a vacation to the ACR Blog.