On June 1,
we reviewed a number of motions filed in USA vs. Kevin Ring. Now, on July 1,
US District Judge Ellen S. Huvelle has issued an order related to these motions. Judge Huvelle sees two distinct types of crimes in the indictment. The first set (Counts I-VIII and a specific part of Counts IX and X) involve allegedly unlawful lobbying of federal officials (essentially bribery). The second set of crimes involve the alleged false statements Mr. Ring told to investigators (Counts IX and X). This distinction guided Judge Huvelle's decisions. Let’s go through each motion and see what Judge Huvelle said about each one:
1.
Motion to Suppress Tangible Evidence (Office Emails)Argument: Kevin Ring had an expectation of privacy related to emails he sent/received on his company email accounts at Greenberg Traurig and Preston Gates and therefore are inadmissible under the 4th Amendment protection from unreasonable searches.
Result: DENIED
Commentary: The ACR Blog has always
believed this was a weak argument.
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2.
Motion to Disqualify CounselArgument: A conflict of interest exists surrounding the head of the Justice Department’s Public Integrity Section, William Welch II. Henry Schuelke, an investigator hired by a former employer of Mr. Ring, Greenberg Traurig, was expected to be a witness against Mr. Ring at the same time that he is investigating Mr. Welch. To resolve this perceived conflict, the prosecution team should be disqualified.
Result: DENIED
Commentary: Judge Huvelle was willing to let Counts IX and X remain unsevered where they related to Mr. Ring's efforts to obtain a job for Julie Doolittle. Mr. Schuelke was likely going to testify against Mr. Ring with respect to Counts IX and X. Therefore, Judge Huvelle must have denied this motion on the merits. The ACR Blog never understood those who saw a conflict of interest surrounding Mr. Welch.
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3.
Motion to Sever CountsArgument: Counts I-VIII involved alleged acts of unlawful lobbying. Counts IX and X involve alleged lies Mr. Ring told Mr. Schuelke. The two sets of charges are so different that they should be tried separately. Also, if a jury hears evidence about the alleged lies in Counts IX and X, it will prejudice their deliberations on Counts I-VIII.
Result: GRANTED IN PART AND DENIED IN PART. Most of the alleged lies told by Mr. Ring involve fraudulent billing and kickbacks from Michael Scanlon's firm, Capitol Campaign Strategies (CCS). These matters are sufficiently different from the alleged unlawful lobbying activities that they warrant a separate trial. However, alleged lies that Mr. Ring told Mr. Schuelke regarding Mr. Ring's efforts to obtain a job for Julie Doolittle, wife of former Rep. John Doolittle (R-Calif.) (Representative 5) are similar to other efforts to unlawfully lobby federal officials. Therefore, this narrow section of Counts IX and X may be tried with the other counts related to alleged unlawful lobbying.
Because Judge Huvelle severed Counts IX and X to the extent that they related to fraudulent billing and kickbacks, she also struck paragraphs 27-29 from the indictment:
27. Defendant RING and his coconspirators used the growing success of their lobbying practice, which had been built in part by corrupt means, to retain existing clients and attract future clients. As part of their marketing efforts, defendant RING and his coconspirators persuaded the New Mexico tribe that the hiring of Scanlon to perform certain grassroots and public-relations services was critical to achieve the New Mexico tribe's lobbying goals and objectives.
28. Abramoff and Scanlon had a preexisting profit-sharing relationship. Defendant RING, Abramoff, and Scanlon agreed and understood that defendant RING would receive approximately five percent of the total revenues generated by Scanlon from the New Mexico tribe. Defendant RING, Abramoff, and Scanlon did not disclose to the New Mexico tribe any of the payments by Scanlon to defendant RING or Abramoff.
29. Abramoff used funds derived from his lobbying practice and the Scanlon payments in part to finance the scheme to defraud. This included, but was not limited to, the things of values provided to public officials as well as bonuses, payments, and other financial benefits provided to defendant RING and other coconspirators.
Commentary: Judge Huvelle has drawn a bright line between acts related to unlawful lobbying and other allegedly unlawful acts. She is committed to making this trial focused solely on Mr. Ring's alleged unlawful lobbying. Even though Judge Huvelle would have allowed the government to try part of Counts IX and X with Counts I-VIII, the government today filed an
Unopposed Motion to Sever Counts IX and X.
It remains to be seen whether the government issues a second indictment to reinstate Counts IX and X. Update: A commenter at Wendy's place says a new indictment is not necessary. Judge Huvelle's decision means that there will be two trials ... one for Counts I-VIII and the other for Counts IX and X. It isn't clear to me, but I suspect that the sticken paragraphs will be reinstated for the Count IX and X trial.::
4.
Motion to Exclude Evidence of Uncharged ConductArgument: There are three types of evidence that the government wants to use against Mr. Ring that are not mentioned in the indictment. The government should not be able to use this evidence at trial. These three types of evidence include evidence of alleged
(1) Fraudulent billing;
(2) Kickbacks from CCS; and instances of
(3) Unlawful lobbying activities not mentioned in the indictment.
Result: GRANTED IN PART AND DENIED IN PART. Evidence of alleged
(1) fraudulent billing and
(2) kickbacks from CCS will not be allowed. Evidence of uncharged instances of alleged
(3) unlawful lobbying will be allowed. Some evidence of alleged
(1) fraudulent billing may be used if the alleged fraud was meant to conceal recipients of meals/tickets in an effort to further the alleged conspiracy of
(3) unlawful lobbying.
Commentary: The unsevered Counts I-VIII related to instances of alleged
(3) Unlawful lobbying. While evidence of Mr. Ring's alleged
(1) fraudulent billing and receipt of
(2) kickbacks from CCS might be relevant to the severed portion of Counts IX and X, they are not relevant to Counts I-VIII. Judge Huvelle will allow evidence of uncharged acts of
(3) unlawful lobbying because Counts I-VIII are involved alleged acts of unlawful lobbying. Judge Huvelle will also allow evidence of uncharged
(1) fraudulent billing when the fraudulent billing contains elements of
(3) unlawful lobbying.
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5.
Motion to Suppress Tangible Evidence (Search of Mr. Ring's residence)
Argument: All evidence seized from Mr. Ring's residence must be suppressed because the search warrant was so broad that it was in effect a general search prohibited by the 4th Amendment.
Result: GRANTED IN PART AND DENIED IN PART. Judge Huvelle refused to deny any evidence responsive to the search warrant. Source materials used by Mr. Ring in his book draft are allowed, but not items that "could be" source material.
Commentary: Read the Motion to see what items were specified in the search warrant. The search warrant specified one class of items that the defense found particularly objectionable -- a draft and the source material for a book where Mr. Ring allegedly indicates
“that he had taken certain actions as a lobbyist with a corrupt intent". Judge Huvelle seems to say that the draft and source materials are admissible, but that items that speculatively "could be" source material are not admissible. It isn't clear who gets to determine which items are indeed source material and which items merely "could be" source material. At any rate, we don't view this order to be too damaging to the Justice Department. After all, the only evidence Judge Huvelle ruled inadmissible is evidence the jury would have given the least weigh to. The DoJ probably wouldn't have used such evidence anyway.
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Overall, Judge Huvelle's order must be considered a victory for the government. With respect to the counts related to unlawful lobbying activities, the only thing the government lost was their weakest evidence from the search of Mr. Ring's home.
Mr. Ring won't be sleeping any easier in July than he did in June.
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Wendy at
Unheard No More! examines the same documents.
