Todd Boulanger Sentencing Deferred

Todd Boulanger with his
ever-present sidekick, Mr. Cup

We have a follow-up to yesterday's post on Todd Boulanger's joint request with the Justice Department to defer setting a sentencing date. U.S. District Judge Richard Roberts has granted the request to defer sentencing.

It appears less likely that Mr. Boulanger will be sentenced prior to Kevin Ring's June 2010 retrial. Remember that the judge in Mr. Ring's case, U.S. District Judge Ellen S. Huvelle, had pressured the Justice Department to sentence witnesses in the Ring case prior to the retrial date. It doesn't make sense to the author of the ACR Blog, but Judge Huvelle said that sentencing these witnesses would make them more likely to testify. Mr. Boulanger testified in the first trial despite the fact that he has yet to be sentenced. It seems reasonable to believe that Mr. Boulanger will be available to testify in Mr. Ring's retrial whether or not he has been sentenced.

It remains to be seen if other witnesses in the Ring case will be sentenced prior to the 2010 retrial.

Horace Cooper Gets Public Defender

Horace Cooper, a "legal expert", "scholar" and Senior Fellow at the American Civil Rights Union was indicted on Abramoff-related charges back in August. A couple of weeks ago, Beth Sussman of the National Journal reported that U.S. District Judge Ellen S. Huvelle had recommended that Mr. Cooper apply for a public defender. Despite holding several responsible jobs during his career, Mr. Cooper apparently doesn't have the financial ability to pay for his own lawyer. Mr. Cooper seems not to be a fiscal conservative in his personal finances. Consequently, Mr. Cooper has elected to take the "public option" to fund his legal defense. Today, a federal public defender advised the Court that she was representing Mr. Cooper.

The ACR Blog has not written about Mr. Cooper prior to today. We just haven't figured out how Mr. Cooper fits into the Abramoff scandal. And to be honest, today's development isn't noteworthy enough for us to write about. The purpose of this post is to announce that the ACR Blog is developing a story about Mr. Cooper. We may have found how Mr. Cooper is tied to the scandal ... either that, or we have found the most curious set of coincidences. Stay tuned ....

Todd Boulanger Status Report

In an unguarded moment, Todd Boulanger
shows us what is in the cup

On Friday, October 23, 2009, attorneys for Todd Boulanger and the Justice Department filed a Joint Status Report with U.S. District Judge Richard Roberts. The parties jointly request that Judge Roberts defer sentencing of Mr. Boulanger and order another status report in February 2010.

The ACR Blog sees many documents of this type appear on PACER. We are entirely inconsistent on how we react to them. Sometimes, we don't mention them at all. Other times, we report these requests as a fait accompli since they are routinely granted within a day or so.

This request is different. We aren't certain that Judge Roberts will defer Mr. Boulanger's sentencing again. Recall that District Judge Ellen S. Huvelle has urged the Justice Department to sentence individuals connected to the Abramoff scandal in time for them to testify in Kevin Ring's retrial in June 2010.

We don't know what to make of the fact that three full business days have passed since the parties filed their Joint Status Report. Judge Roberts is holding court this week, and a routine matter like this shouldn't take a lot of his time.

It doesn't matter what Judge Roberts does with this request -- we'll find it newsworthy either way:

If Judge Roberts defers sentencing and sets a date for the next status report, he will be going against Judge Huvelle's preference that individuals in the Abramoff scandal be sentenced right away. We're sure Judge Roberts will run his courtroom as he sees fit, but scheduling a new status report instead of a sentencing date makes it less likely that all witnesses will be sentenced prior to Mr. Ring's retrial.

If Judge Roberts does not defer sentencing and actually sets a sentencing date, he bucks the joint request of both parties in U.S. v. Todd Boulanger. Such an act isn't unprecedented, but it isn't common, either. If Judge Roberts does set a sentencing date, it may indicate that judges in other Abramoff-related cases may be showing deference to Judge Huvelle's preference.

We'll keep checking PACER and keep you advised.

Honest Services Fraud - Material Misrepresentation

A few days ago, National Journal's Beth Sussman reported:

On Monday, the defense argued that the government failed to properly address one element of the honest services wire fraud charges during the trial: that Ring committed "material misrepresentation" in trying to cover his tracks. Huvelle said she would address that concern in future hearings, but if the court in fact decides the government does not have enough evidence to prove that element, six of the eight charges could disappear.

The prosecution argued that by concealing names on his firm's expense reports or by neglecting to advise public officials to put tickets and meals on financial disclosure forms, Ring was purposefully misrepresenting his actions. But Huvelle did not seem to buy that argument -- she said that criminalizing incomplete details on internal billing records would imply that "half the legal profession is running amuck here." She suggested the government could try Ring on charges of bribery instead of honest services wire fraud.

The fact that Honest Service Fraud (HSF) requires an element of "material misrepresentation" (or, as U.S. v. Harvey allows, a "concealment of fact") has not attracted the attention of the ACR Blog up until this point. In a September 24 court filing, the Justice Department posited that Mr. Ring's acts indeed included a concealment of fact:

Ring’s concealment of the identities of public officials on his expense reports is relevant to both theories of honest-services fraud, regardless of whether the public officials he wined and dined were required to report “local meals” on their financial disclosure forms ... Ring’s concealment of recipients’ names—like his use of the term “fruit” and unwillingness to tell his accounting department the
public officials whom he had wined and dined—goes to Harvey’s material misrepresentation element of honest-services fraud, whatever the theory.

According to Ms. Sussman, it now seems that U.S. District Judge Ellen S. Huvelle is disinclined to accept that line of thinking. It isn't clear to the ACR Blog why this issue wasn't more fully fleshed out before Monday's hearing.

Also from the September 24 filing, the DoJ suggests another form of "intentional concealment" found in U.S. v. Kevin Ring:

Where an ethics rule required disclosure of a gift, travel, or some other thing of value, the public official’s failure to follow that rule is simply evidence of intentional concealment. Such a failure would therefore fall into the same category of other types of concealment evidence such as (1) a discussion or email exchange Ring had with a coschemer about not putting names on receipts or (2) Ring’s use of the term “fruit” to disguise tickets.

Footnote eliminated

The ACR Blog is not entirely convinced by the DoJ that Mr. Ring should bear the responsibility of ensuring that a public official complies with his disclosure requirements. That said, it is obvious that, in some respects, Mr. Ring contributed to the non-compliance, particularly in the case of Jennifer Farley. The larger conspiracy count is more likely to remain intact. We just don't have enough information on HSF Counts III-VIII to know what, if anything, Mr. Ring did to contribute to a public official's non-compliance. It may not really matter though, since Mr. Ring is merely charged with creating a scheme or artifice to commit fraud. It may be sufficient that there is a material misrepresentation or intentional concealment in the scheme or artifice, and it isn't necessary that Mr. Ring personally participated in the misrepresentation or concealment.

So there are two possible material misrepresentations/intentional concealments. (1) Ring's concealment of public officials names on expense report documents; and (2) Public officials' concealment of gifts on disclosure forms. It is our position that Ring's alleged personal concealment on his expense reports is the stronger of the two items. It is this concealment on expense reports that Judge Huvelle seems to have concerns about. We don't understand Judge Huvelle's reasoning. Greenberg Traurig apparently has a policy of identifying names of people entertained on receipts. This is a common accounting control in American business. This control exists precisely to prevent fraud, and Mr. Ring is charge with fraud. The fact that others circumvent this accounting control is irrelevant. We've never liked the "everyone does it" defense. While Judge Huvelle may be able to narrowly tailor an opinion that this concealment is not an element of fraud in Mr. Ring's case, we hope she is aware of the possible unintended consequences of finding that the circumvention of a common accounting control may not be an element of fraud.

The DoJ may have to rely on the public officials' concealment on required disclosure forms to meet the material misrepresentation or intentional concealment element of HSF. Of course, this means that the DoJ must enter the disclosure forms into evidence again. We've already taken the editorial position that the introduction of these disclosure forms contributed to a conflation of disclosure requirements and HSF. In fact, we've suggested that the DoJ should consider not introducing those forms in a likely retrial. Given the realities of the situation, the DoJ may have little choice.

Justice Department lawyers are certainly a great deal smarter than authors of blogs, especially when it comes to legal matters. Even though DoJ lawyers have their work cut out for them, we are confident that they'll be able to solve this problem. Ideally that means convincing Judge Huvelle that Mr. Ring's concealment of recipients of gifts on expense reports satisfies the material misrepresentation or intentional concealment element of HSF.

::

Sentencing

Also on Monday, Judge Huvelle pressured the DoJ to sentence people who have already pleaded guilty:

[O]n Monday Huvelle pushed the prosecution to sentence the remaining individuals connected to Abramoff who pleaded guilty so Coughlin and others could testify in Ring's retrial.

This directive is puzzling on a couple of levels.

First, whether or not the defendants are sentenced, they will be available to testify in Mr. Ring's retrial. After all, Neil Volz [Mr. Volz was sentenced in September 2007], Ann Copland, John Albaugh and Todd Boulanger are all awaiting sentencing, but they testified in Mr. Ring's first trial. It is true that Bob Coughlin did not testify, but neither the prosecution or defense called Mr. Coughlin to testify - Mr. Coughlin's failure to testify had nothing to do with the fact that he hadn't been sentenced. Besides, Mr. Coughlin has a November 2009 sentencing date already set. Mr. Coughlin will be sentenced prior to Mr. Ring's retrial.

Secondly, Judge Huvelle has stated a preference that defendants be sentenced prior to a retrial. Just last week, however, Judge Huvelle postponed a status conference for defendant John Albaugh until January 2010. A sentencing date may be set at that time, or the status conference may be postponed again.

Rep. Don Young = "United States Representative A"

Our Alaskan correspondent points us to a story by Richard Mauer in the Anchorage (Ak.) Daily News:

Former Veco chief executive Bill Allen should be sentenced to just fewer than four years in prison and fined $750,000 for his role as Alaska's corrupter in chief, federal prosecutors say ...

In a 2007 "confession of additional criminal activity," signed a few days before he pleaded guilty, Allen spoke of 13 years worth of gift-giving by him and Smith to "United States Representative A," a thinly veiled reference to Young, as well as former Alaska U.S. Sen. Ted Stevens.

Emphasis Added

We admit we haven't been following the Veco scandal closely. This may not be new news, but it is new to us. And long-time readers know what the ACR Blog thinks when the Justice Department gives a politician a cutesy name like "United States Representative A".

OUR VIEW: Indict David Lopez and Peter Evich if they Broke the Law

Peter Evich (L) and David Lopez (R)

David Lopez and Peter Evich are both former staffers to former Rep. John Doolittle (R-Calif.). All three men were named as co-conspirators in the recent trial of Kevin Ring. Messrs. Evich and Lopez have the added distinction of asserting their Fifth Amendment right against self-incrimination when defense attorney Andrew Wise indicated that he'd like to call the two men to provide testimony in Mr. Ring's trial. This is strong evidence that Messrs. Evich and Lopez believe that they face legal jeopardy.

According to Jordan Weissmann at the Blog of Legal Times, some of the witnesses in U.S. v. Kevin A. Ring faced legal jeopardy related to tax charges:

[U.S. District Judge Ellen S. Huvelle] said she also wanted to let the statute of limitations expire on potential tax charges against several defense witnesses who evoked their Fifth Amendment right not to testify in the last trial.

It isn't clear that Messrs. Evich and Lopez are among the defense witnesses who face potential tax charges, but it isn't unreasonable to believe they are. Both Mr. Lopez and Mr. Evich figured prominently in the indictment of Kevin Ring and in the exhibits presented at trial. The court documents show that Messrs. Evich and Lopez received numerous gifts from Team Abramoff. Prosecutors have used laws against tax evasion to secure a conviction of Trevor Blackann, another Abramoff scandal participant who received similar gifts.

Justice Department prosecutors hint that charges are not imminent against Messrs. Evich and Lopez or anyone else. Prosecutor Nathaniel Edmonds suggested that even without the prospect of tax-related charges, the witnesses may still fear charges related to false statements if their testimony varies from previous statements made to investigators.

By pleading the Fifth, though, Messrs. Evich and Lopez seem to believe that the Justice Department can credibly file criminal charges against them. Since the two men were apparently active participants in one of the biggest public sector scandals of this generation, the Justice Department should not disappoint. File those credible charges if warranted.

Kevin Ring Retrial - June 2010

So reports the Associated Press:

A federal judge Monday set June 21 for the retrial of a former lobbyist who worked for influence peddler Jack Abramoff.

U.S. District Judge Ellen Segal Huvelle set the date after Thursday's mistrial for Kevin Ring. The jury had deadlocked over eight counts.

This indicates to us that the jury nearly convicted Mr. Ring.

The ACR Blog doesn't necessarily agree with this characterization of the pending Supreme Court cases regarding Honest Serices Fraud:

Justice Department attorneys had wanted a January or February retrial date. The judge, however, took into account the scheduled Dec. 8 Supreme Court arguments on the constitutionality of the federal "honest services" fraud statute, used to charge Ring.

Sometime soon, we'll look at the pending cases. At this time, the ACR Blog does not believe any of them bring up Constitutional issues as the AP indicates. Of course, once this book is opened, the Supreme Court may do something unexpected.

Mistrial out of Spite

***UPDATE***

Jennifer Yachnin of Roll Call reports that Judge Huvelle has declared a mistrial on all eight counts.

==

Beth Sussman of National Journal reports that U.S. District Judge Ellen S. Huvelle has declared a mistrial in U.S. v. Kevin Ring after the jurors could not reach a unanimous verdict on Counts I-VII.

Furthermore, we learn that the jurors are no longer unanimous in their verdict on Count VIII, an Honest Services Fraud charge related to a phony job held by Julie Doolittle, wife of former Rep. John Doolittle (R-Calif.).

The fact that at least one juror changed his/her verdict at the last minute indicates that this juror was acting on emotion. The change in his/her vote was intended to spite his/her fellow jurors.

Because of this, the ACR Blog is changing its previous opinion on the jury's original verdict on Count VIII. We now believe the original verdict was guilty.

What is a Tolling Agreement?

The ACR Blog has often mentioned that some scandal figures have signed so-called Tolling Agreements that effectively waive the criminal statute of limitations. We admit that we had no knowledge of Tolling Agreements prior to our interest in the Jack Abramoff scandal. Occasionally, commenters to the ACR Blog have questioned how the Justice Department can prosecute or threaten to prosecute cases beyond the statute of limitations. The purpose of this post is to provide background on this matter in Q&A form:

==

WHAT IS A TOLLING AGREEMENT?

As we mentioned, a Tolling Agreement is an agreement between prosecutors and an individual under criminal investigation that waives the criminal statute of limitations for a period of time. Prosecutors get time to more fully develop their case; persons under investigation get to forestall indictment with the hope of not ever getting indicted.

An example of a Tolling Agreement in a criminal case (actually an Honest Services Fraud case) can be found beginning on page 5 of this .pdf.

==

WHO HAS SIGNED A TOLLING AGREEMENT?

We have examined two Washington Post articles that indicate that former Reps. Bob Ney (R-Ohio) and Tom DeLay (R-Sugar Land) have both signed Tolling Agreements. Scandal figure Robert Coughlin signed Tolling Agreements according to Section 10 of his plea agreement.

On a more speculative level, the ACR Blog has written about its suspicions that former Rep. John Doolittle (R-Calif.) has signed a Tolling Agreement. There appear to be several simmering investigations into the pre-2004 acts of other individuals. It isn't unreasonable to wonder if they, too, have signed Tolling Agreements. Those people include:

David Ayres (Fifth Amendment)
Laura Ayres (Fifth Amendment)
Laura Blackann (Fifth Amendment)
Peter Evich (Fifth Amendment)
Kevin Koonce (Staffer F)
David Lopez (Fifth Amendment)

==

WHAT HAPPENS AFTER A TOLLING AGREEMENT EXPIRES?

Typically, Tolling Agreements have expiration dates. In the example provided above, the Tolling Agreement actually extends past the expiration date unless the person under investigation provides 14 days' notice that he intends to terminate the agreement. Generally, though, if the government has not indicted a person under investigation prior to the termination of the Tolling Agreement, the person under investigation is protected by the applicable statute of limitations.

==

CAN A TOLLING AGREEMENT BE FORCED ON A PERSON UNDER INVESTIGATION?

The ACR Blog is not aware of any Motion to Compel Tolling Agreement. We tend to think that it isn't possible to compel someone to agree to a Tolling Agreement. Such compulsion seems to indicate a strong element of duress, and agreements made under duress are usually not enforceable.

There might be extraordinary circumstances that allow a Tolling Agreement to be forced on a person under investigation. For example, Tom DeLay has signed a Tolling Agreement. If for some reason Mr. DeLay tried to back out of his responsibilities under the deal or otherwise failed to comply with the terms of his original Tolling Agreement, it might be possible to compel him to waive the statute of limitations. Alternatively, if a defense attorney filed some motion to prevent a case from going before a grand jury and the clock was about to expire on a Tolling Agreement, we could see the need to compel the person under investigation to waive the statute of limitations during that period.

Deadlocked ... Still

OUR VIEW: Potential Mistrial Benefits Prosecution

We're sure you've seen it already, but National Journal's Beth Sussman was the first to report that the jury in U.S. v. Kevin Ring reports that it is still deadlocked. Both the prosecution and defense have asked U.S. District Judge Ellen S. Huvelle to declare a mistrial. Judge Huvelle seems to want to avoid throwing out three weeks' worth of work in the trial. She has directed the jury to give deliberations one more try.

When the jury informed Judge Huvelle that it was "irrevocably deadlocked" yesterday, the pessimism of the ACR Blog must have been palpable to some of our readers (see comments). So don't be surprised when we say that a potential mistrial benefits the prosecution more than Mr. Ring.

Obviously the billable hours will continue to mount for Mr. Ring. In a sense, the only clear winner will be the attorneys at Miller Chevalier as their checking accounts get bigger while Mr. Ring's balance gets smaller.

Eventually, we'll get to learn the jury's verdict on Count VIII, the Honest Services Fraud related to the seemingly bogus job Jack Abramoff offered Julie Doolittle, wife of former Rep. John Doolittle (R-Calif.). At that time, we'll get a much clearer picture as to who benefits more from a mistrial. Regardless of the verdict on Count VIII, it is clear that the government intends to retry Mr. Ring in the event of a mistrial:

"Take the verdict [on the one count], declare a mistrial... and get another trial moving as quickly as possible," prosecutor Nathaniel Edmonds suggested.

And we still have the severed Counts IX & X to try, too.

A little unsolicited advice for the Justice Department: In the event of a retrial, withdraw all exhibits related to public officials' reporting requirements. It appears to the ACR Blog that some juror conflated the reporting requirements with Honest Services Fraud. Don't let that happen again.

U.S. v. Kevin Ring: Jury's Second Note to Judge

U.S. v. Kevin Ring: Jury's First Note to Judge

::

SECOND NOTE
"Deadlocked"

Jennifer Yachnin of Roll Call ($) tells us of the second note the jury sent to U.S. District Judge Ellen S. Huvelle. In the note, the jury declared it was irrevocably deadlocked on seven of the eight counts against defendant Kevin A. Ring:

Huvelle characterized the jury’s communication as “an intriguing note.” The missive concluded, she read, stating: “We seek your help in determining whether we should continue to deliberate.”

Our intuition isn't strong enough to draw any conclusions about the jury's declaration that it was deadlocked. We did find this piece of information interesting, though:

Although the jurors indicated they reached a verdict on one count — a charge of “honest services wire fraud” based on a payment of $5,000 to Julie Doolittle, the wife of then-Rep. John Doolittle (R-Calif.) — Huvelle allowed the panel to determine whether it would submit that decision. The jurors opted to defer unveiling that verdict after a brief private conference outside the courtroom.

This count is Count VIII, Honest Services Fraud (HSF) related to a phony job Mrs. Doolittle had with Greenberg Traurig. Jack Abramoff had "hired" Mrs. Doolittle in August 2002 with $5,000 in monthly "compensation". Mrs. Doolittle deposited the $5,000 check related to Count VIII on February 23, 2004. Here are two possible interpretations of that fact that the jury has reached unanimity on the HSF count related to Mrs. Doolittle:

1. Best we can tell, Mr. Ring's involvement in Mrs. Doolittle's job was limited to passing along a request for the job from Mr. Doolittle in March 2002 (Indictment; paragraph 117). Mr. Abramoff hired Mrs. Doolittle into the phony job in August 2002 (Indictment; paragraph 123). The ACR Blog believes that this count is the weakest of the government's eight counts.

(a) Jurors may have determined that Mr. Ring's March 2002 email was too far removed from the February 2004 check to Mrs. Doolittle, resulting in a not guilty verdict.

(b) Jurors may have determined that Mr. Ring, at the time of his March 2002 email, had no intention of participating in an illegal scheme or artifice to commit HSF. After all, Mrs. Doolittle's phony job didn't begin until August 2002. It is reasonable to believe that Mr. Ring did not anticipate that Mr. Abramoff would hire Mrs. Doolittle in a no-show job. This could also result in a not guilty verdict.

::

2. Some jurors may have found the counts related to dinners and/or tickets to be ticky-tack. These jurors may have even attended dinners or sporting events related to their own jobs and believe that such events are customary in business. Therefore, these jurors may be reluctant to find Mr. Ring guilty of Counts II-VII since those counts related to dinners and/or tickets. That said, the ACR Blog rather doubts that any juror has seen his/her spouse receive an unearned monthly $5,000 check in the ordinary course of business. Because the $5,000 check was real cash money rather than meals/tickets, it may be easier for jurors to find Mrs. Doolittle's check to be an example of HSF.

::

When the ACR Blog learned that the jury had reached a verdict on Count VIII, our first reaction was the one described in 1(a). We have always believed that Count VIII was the weakest count in the indictment. It is easy for us to believe that the jury found the connection between Mr. Ring's 2002 acts and the February 2004 check to be too tenuous to hang a guilty verdict on. It is disappointing that the first unanimous verdict is on the weakest count rather than the strongest count (Count I, Conspiracy). Our spirits have been tempered, though, by interpretation 2 which gives a plausible scenario for a guilty verdict on Count VIII.

U.S. v. Kevin Ring: Jury's First Note to Judge

Today, the jury in U.S. v. Kevin A. Ring sent two notes to U.S. District Judge Ellen S. Huvelle. We here at the ACR Blog will try to divine the significance of each note.

FIRST NOTE
"Monetary Limit"

Beth Sussman of National Journal tells us of the first note the jury sent to Judge Huvelle:

The jury gave a note to the judge this morning asking whether a "monetary limit" was imposed on lobbyists for gifts to public officials between 2000 and 2004. Ring is on trial for allegedly giving tickets and meals to public officials in exchange for official acts benefiting his lobbying clients during that period.

"The answer is: no monetary limits," Judge Ellen Huvelle told the jury in response.

Emphasis in original

It appears to us that the jury is conflating disclosure requirements which do have "monetary limits" with the Honest Services Fraud (HSF) statute which does not have "monetary limits". The monetary value of gifts or other items given to a public official in an HSF case has no relevance; if the items influenced the public official in the performance of an official action, the HSF statute has been violated. In retrospect, the DoJ may have made a strategic error when it submitted public officials' disclosure forms into evidence. Discussion of the disclosure forms may be the source of the jury's confusion between the rules that require disclosure (reporting requirements) and the law governing HSF. We have seen this same conflation in the comments of the ACR Blog.

Judge Huvelle's answer to the jury's question is technically correct. However, prosecutor Nathaniel Edmonds, wanted Judge Huvelle to add language that would have specified that a violation of HSF does not depend on the value of the gifts / other items of value:

Nathaniel Edmonds, an attorney for the Department of Justice, did ask Huvelle to further instruct that "giving of a thing of value with a corrupt intent, regardless of the monetary amount, may be a violation of criminal law."

Emphasis in original

Although Mr. Edmonds' proposed addition to the instruction makes complete sense to the ACR Blog, apparently Judge Huvelle did not buy Mr. Edmonds' argument. She did not add this important clarification in her response to the jury.

DEADLOCKED!

Jennifer Yachnin of Roll Call ($) reports that the jury in the trial of Kevin Ring is "irrevocably deadlocked" on all but one charge.

... more to come ...

U.S. District Judge Ellen S. Huvelle tells jury to continue deliberating, but sends them home early Tuesday afternoon.

... follow Wendy for up-to-date news.

Jeffrey Skilling and Honest Services Fraud

In the news today, we learn that the Supreme Court will hear an appeal from former Enron CEO Jeffrey Skilling:

Skilling’s appeal contends that, under a federal statute barring “honest services” fraud, prosecutors needed to show that he was aiming to advance his own interests, rather than those of the company.

The fact that the Supreme Court will hear Mr. Skilling’s appeal will likely not affect Kevin Ring's case even though Mr. Skilling was convicted of Honest Services Fraud, the same charge that Mr. Ring faces in his own criminal trial.

Some quick differences:

1. Mr. Skilling was convicted of private honest services fraud … Mr. Ring is charged with public honest services fraud. Mr. Skilling argues that prosecutors needed to show that he personally benefited from the fraud. Maybe this difference isn’t such a big deal, but case law seems to differentiate between private honest services fraud and public honest services fraud.

2. Personal benefits. Mr. Skilling argues that he shouldn’t have been convicted of honest services fraud because Mr. Skilling’s acts weren’t motivated by personal gain -- Mr. Skilling was advancing the interests of the company. A casual observer might find parallels with Mr. Ring’s case. After all, Mr. Ring sought to advance the interests of Greenberg Traurig and its clients. The key difference here is that Mr. Ring isn’t accused of defrauding anyone of his own honest services. Mr. Ring is accused of creating a scheme to defraud the public of the honest services of several public officials. Public officials such as Ann Copland and John Albaugh admit that they were motivated by tickets, meals and/or travel to perform official actions on behalf of Mr. Ring’s clients. It is these public officials (and others) who received personal benefits and defrauded the public of their honest services. Mr. Ring stands accused of creating the scheme to assist the public officials to commit honest services fraud.

It doesn't appear that Mr. Skilling's appeal, even if successful, will help Mr. Ring.

No Verdict Yet -- Jury Breaks for Weekend

In U.S. v. Kevin Ring, the jury still has yet to reach a verdict. They're taking the weekend off, and reconvening on Tuesday since Monday is a federal holiday. (We're not 100% sure about Tuesday ... other smart and knowledgeable people indicate that the jury will return Monday.)

We're sure everyone has seen the timely reporting of yesterday's events in MainJustice and National Journal regarding plea documents related to Bob Coughlin in the jury foreman's evidence binder that had been stricken by Judge Huvelle. Wendy at Unheard No More! is keeping up with things.

Some quick thoughts:

1. Wendy is right when she says the fact that the defense had an opportunity to review the evidence binders indicates that this was a mistake.

2. The jury foreman is taking his responsibilities seriously. I read his note to Judge Huvelle, and he sensed that the documents had be stricken (withdrawn is the word he chose). The formean said he only gave the plea documents a cursory review.

3. It appears from the reporting of the professional journalists and the foreman's note that Coughlin's plea documents only appeared in the foreman's evidence binder. In the event that the plea documents hadn't been stricken, the foreman requested a full set of copies.

"Traditional Tools" or "Stream of Benefits"?

As reported by Pete Yost of the Associated Press:

"It was [Kevin Ring's] job to influence public officials," one of Ring's attorneys, Andrew Wise, told the jury. "There is no question he used what were traditional tools including entertainment, meals, tickets to games."

A commenter in the same post echoes Mr. Wise's point:

Mr. Ring must be found not guilty, "otherwise, every lobbyist in DC is guilty and all shops should roll up the doors and cease to exist."

Since we here at the ACR Blog live out in the provinces, we can't really speak to what "traditional tools" lobbyists employ in the shadows of Washington DC's marble. In fact, we believe this is the wrong standard to consider. Mr. Ring isn't facing legal jeopardy for using traditional tools of lobbying. Mr. Ring is on trial for providing an illicit stream of things of value to public officials in exchange for official action. So what we really should consider is whether entertainment, meals and tickets to games can be considered as part of an illicit stream of things of value.

The answer is unequivocally "YES". Entertainment, meals and tickets to games can be part of an illicit stream of benefits. Corey Kemp, the former treasurer for the city of Philadelphia is serving a 10 year sentence for Honest Services Fraud for receiving an illicit stream of benefits including meals and sports tickets. From U.S. v. Corey Kemp (Court of Appeals, Third Circuit; 2007):

Page 8
White arranged for Kemp to receive tickets to the NBA All-Star Game and concomitant festivities; two $5,000 checks from Hawkins; a $10,350 deck; transportation and tickets to the Super Bowl in San Diego as well as accommodation and meals; four tickets to a USA basketball game; trips to New York and Detroit; and numerous meals.

Whether or not meals and tickets are traditional tools of Washington DC lobbyists misses the point. These items can be part of an illicit stream of benefits supporting a conviction of Honest Services Fraud.

As U.S. Attorney Michael Ferrara says, "It all comes down to Mr. Ring's intent -- no one else's. It is his words [in e-mails] that make his intent plain as day."

Closing Argument Kerfuffle

"And, ladies and gentlemen, if we had put on those witnesses, it wouldn’t have changed one word in those e-mails, not a word. The only thing it would have changed is the length of this trial." - U.S. Attorney Michael Ferrara in closing arguments of U.S. v. Kevin Ring.

In the closing arguments during U.S. v. Kevin Ring, prosecutor Michael Ferrara was emphasizing the importance of emails written by alleged co-conspirators who did not testify during the trial when he made the above statement.

Defense attorney Andrew Wise interpreted the statement that "the only thing [additional witness testimony] would have changed is the length of this trial" to imply what the "missing witnesses" would have said -- specifically that the "missing witnesses" wouldn't have contradicted the emails. In a motion filed with the court today, Mr. Wise asks U.S. District Judge Ellen S. Huvelle to give the jury a "curative instruction":

PROPOSED CURATIVE JURY INSTRUCTION

The prosecutor made an argument yesterday speculating about the contents of testimony from witnesses it chose not to call to testify in this case. Such an argument was improper and I instruct you to disregard it. The prosecution has the burden of proof in this case, and it must prove Mr. Ring's guilt beyond a reasonable doubt. I specifically refer you back to the Court’s instruction on Reasonable Doubt, which is Instruction 15 in your packet. Thus, in assessing whether the government has met its burden of proving guilt beyond a reasonable doubt, you may properly consider not only the evidence presented but also the lack of any evidence that the government, in the particular circumstances of the case, might reasonably be expected to present. This can include the government's failure to present the testimony from witnesses whom you might reasonably have expected the government to present.

Unlike Mr. Ring, the government had the power to produce any of the potential witnesses in this trial. You may infer that it would have done so if the government believed such testimony would have been favorable to the prosecution. You may also, if you deem it appropriate, infer that the failure of the government to produce a witness' testimony indicated that such testimony would have been unfavorable to the government.

The DoJ observes that Mr. Ferrara's statement only explicitly states that additional testimony "wouldn't have changed one word in" the emails admitted into evidence.

The ACR Blog sees both sides of this matter.

First, the statement that "the only thing [additional witness testimony] would have changed is the length of this trial" is undeniably inartful. We tend to read the above statement as saying "[additional witness testimony] would have made the trial longer." But, given the statement actually made, it isn't so easy to dismiss Mr. Wise's point. In the Government's Opposition to the defense's motion, the government says that "a mere two sentences" after Mr. Ferrara made the "only thing" statement, Mr. Ferrara said, "Now, ladies and gentlemen, the judge told you, our arguments are not evidence. Nothing I’m saying is evidence...." It looks to us that Mr. Ferrara recognized that his statement was not what he intended to say and he immediately tried to recover as gracefully as he could. But as they say, that horse had already left the barn or something.

The defense asked for a mistrial immediately after the government's argument. Judge Huvelle apparently didn't think that Mr. Ferrara's slip was so damaging that it warranted throwing away three weeks of work in the trial. She suggested she wouldn't grant a mistrial (Defense Motion, p. 4). Judge Huvelle did allow further discussion of this matter, hence today's dueling court filings.

The ACR Blog recognizes that Mr. Ferrara's statement was a mistake. We suspect that in hindsight, the government also believes that the point could have been made better. But Mr. Wise goes too far in his suggested remedy. His suggested curative instruction is so one-sided that it appears to us to be worse than Mr. Ferrara's slip-up.

The government has its own arguments why Judge Huvelle should take no action on this matter. We have always admitted we're biased in favor of the prosecution, so don't be surprised when we say that taking no action is the proper course of action. But don't be surprised, either, if this matter resurfaces in the inevitable appeal in the event Mr. Ring is convicted.

A Fifth Takes the Fifth

A couple of weeks ago, we noticed that four people, David Ayres, Laura Ayres, David Lopez and Peter Evich had all invoked their Fifth Amendment right against self-incrimination. Tonight, we learn the name of another individual who refused to testify on grounds that she may incriminate herself.

From a court filing today:

During the trial, the defense made repeated attempts to call other witnesses to testify including Mr. and Mrs. Ayres, Laura Blackann, David Lopez, and Peter Evich. These attempts were based on the fact that these witnesses had made many exculpatory statements in their interviews with the FBI. However, each witness invoked their Fifth Amendment privilege against self-incrimination.

Emphasis added

Mrs. Blackann was spokesman for Tom DeLay, and later, John Doolittle. The Justice Department entered an email exchange between Mrs. Blackann and Kevin Ring into evidence in Mr. Ring's trial:

Exhibit 421: 02/10/2004 Email from Blackann to Ring, "RE: Senate FSC/ETI bill"

Laura Blackann (nee Laura Brookshire), while serving as Rep. John Doolittle's Communications Director, was helping Mr. Ring with tax legislation benefiting one of his clients when she and Mr. Ring exchange emails:

Text of Email

Laura Blackann: "Haha! [J]ust earning my Sigs Sushi ;)"

Kevin Ring: "Exactly. I will keep you occupied."

Laura Blackann: "Keep it coming -- this is the fun stuff."

The defense did not object to this exhibit. RESULT: Admissible.

It certainly made sense that Mrs. Blackann had asserted her Fifth Amendment privilege against self-incrimination. We now have confirmation.

Influence & Quid pro Quo

From Pete Yost of the Associated Press:

"It was his job to influence public officials," one of Ring's attorneys, Andrew Wise, told the jury. "There is no question he used what were traditional tools including entertainment, meals, tickets to games."

Emphasis Added

From Judge Huvelle's jury instructions:

JURY INSTRUCTION NO. 42

HONEST SERVICES WIRE FRAUD - FIRST ELEMENT: SCHEME OR ARTIFICE TO DEFRAUD

The first element that the government must prove is that there was a scheme or artifice to deprive the United States and its citizens of their intangible right to honest services of certain government officials. To find the defendant guilty of this offense, you must find that the defendant engaged in a scheme to give a thing or things of value with the corrupt intent to influence a public official in the performance of an official action or official actions.

A public official owes a duty of honest, faithful and disinterested service to the public. Officials of government - local, state, and federal - are relied upon to act in the public interest, not for their own enrichment ... So when a public official agrees to be corruptly influenced in the performance of his or her official actions or duties by the receipt of a thing of value, he or she breaches this duty of honest, faithful, and disinterested service because he or she outwardly purports to be exercising independent judgment in official work, but instead has received benefits for the outcome or deed ...

The thing of value must be given with the intent to influence the public official in the performance of his or her official action. This requires some specific quid pro quo (a Latin phrase meaning "this for that" or "these for those"), that is, a defendant must intend to receive an official action in return for the receipt by the public official of a thing of value. The defendant must intend that the public official realize or know that he or she is expected, as a result of receiving this thing of value, to exercise particular kinds of influence or decision-making to benefit the giver as specific opportunities to do so arise....

As I have noted, a scheme to deprive honest services requires that the giver of the thing of value intends to give this benefit in exchange for the public official's performance of an official action or actions ... In addition, "official action" includes the exercise of both formal and official influence (such as a legislator's votes on legislation) and informal official influence (such as a legislator's behind-the-scenes influence on other public officials in the legislative or executive branches.)

Bolded emphasis added

As reported by National Journal's Beth Sussman:

Boulanger said that Ring joked about his use of tickets and meals in lobbying. "Hello quid, where's the pro quo?" Boulanger reported Ring saying to him on several occasions.

Emphasis Added

From another Beth Sussman article:

"The receipt of the tickets and the meals made the lobbyists more accessible to me, and I took official actions during that time. I knew it was their job to influence me," Copland said during cross-examination by the defense.

Emphasis Added

And one more from Beth Sussman:

"I went to work thinking, 'I'm going to do something I think is wrong today,'" John Albaugh, former chief of staff to former Rep. Ernest Istook, R-Okla., said of the period between 2003 and 2004 when he received tickets and meals from Ring while helping Ring secure earmarks to fund projects for clients. Albaugh said he continued despite knowing the wrongfulness of his actions because he wanted to help Istook be "successful." Ring was a major political donor to Istook, and he helped plan fundraisers for the congressman.

After the investigations into Abramoff started, "I began to be concerned I may have broken the law," Albaugh said in his testimony. "I had terrors in the night.... I suffered. I knew I had broken the law."

Emphasis in original

What's your verdict?

Jury Gets U.S. v. Kevin Ring

Watch the Monkey Get Hurt ... MONKEY!

A quick roundup of who's writing about today's closing arguments:

Associated Press
Pete Yost
Abramoff-related trial goes to the jury

Blog of Legal Times
Jordan Weissmann
Abramoff Associate's Trial Coming to a Close

MainJustice
Joe Palazzolo
Ex-Abramoff Associate’s Case Goes to Jury

National Journal
Beth Sussman
Ring Attorney: Prosecution Did Not Do Its Job
Prosecution: E-mails Show Ring's Criminal Intent
Ring Defense Obscured As Witnesses Plead Fifth

Roll Call
Jennifer Yachnin
Ring Case Is Handed Over to Jury ($)
Defense Asks Jury to Acquit Ring ($)
Prosecutors in Ring Case Say Gifts Are Crimes ($)


Shock the Monkey (1982)
Peter Gabriel

You throw your pearls before the swine

Honest Services Fraud - Upcoming Supreme Court Cases

One last point on the piece by Randall D. Eliason: He teases us with the fact that the U.S. Supreme Court will review two Honest Services Fraud cases:

The Supreme Court is finally poised to re-enter the fray. The Court has just granted certiorari in two honest services cases, one involving a state legislator and one involving corporate officers. But the cases do not challenge the constitutionality of § 1346 and they seem destined only to add to the judge-made law in this area.

When Mr. Eliason tells us that the cases don't challenge the constitutionality of Honest Services Fraud (HSF), it indicates to us that there won't be sweeping changes in case law for HSF. But even that is an understatement. The two cases the Supreme Court will review will have little impact on the law in areas relevant to U.S. v. Kevin Ring.

In one case, the Supreme Court is only considering the use of Honest Services Fraud in the private sector. This doesn't apply to Mr. Ring's case.

The other case involves a state legislator. The Supreme Court will decide if prosecutors must show that the defendant violated state law in order to charge him with Honest Services Fraud. Since Mr. Ring's case involves federal officials, this case doesn't directly apply to him either.

Of course, once opened, the Supreme Court could make some unanticipated ruling that does affect Mr. Ring's case. But since the primary questions of law in both cases are removed from the charges against Mr. Ring, that is rather unlikely.

We must concede, though, that Mr. Eliason is accurate when he says that these two cases may very well lead to new judge-made case law. It's just that any new case law is unlikely to be helpful to Mr. Ring.

Honest Services Fraud - Quid pro Quo

Let's stick with Randall Eliason's article in the National Law Journal. Mr. Eliason doesn't like the Honest Services Fraud law because it doesn't mandate that a specific thing of value received by a public official be linked to a specific official act:

[C]ourt decisions during the past decade made prosecutions under the federal bribery and gratuities law more difficult. Courts have required the prosecution to link a particular gratuity to a particular "official act" and have narrowly interpreted the term "official act" in the statute....

By charging honest services fraud in federal corruption cases, prosecutors are able to avoid these holdings. Even in cases in which bribery or gratuities could be established, it will often be easier simply to charge the same conduct as an honest services violation and not worry about the more finicky bribery statute.

Mr. Eliason points out that federal bribery and gratuities law requires the prosecution link a particular gratuity to a particular "official act". Mr. Eliason then bemoans that the Honest Services Fraud law has no such requirement. Apparently, we are supposed to conclude that the Honest Services Fraud law is therefore a bad law.

Indeed Honest Services Fraud does not require a particular gratuity be linked to a specific official act. US v. Kincaid-Chauncey (Court of Appeals, 9th Circuit; 2009) describes the "retainer theory" of Honest Services Fraud (page 2005):

It is sufficient, for example, if the evidence establishes that the government official has been put on "retainer" - that is, that the government official has received payments or other items of value with the understanding that when the payor comes calling, the government official will do whatever is asked. Only individuals who can be shown to have had the specific intent to trade official actions for items of value are subject to criminal punishment on this theory of honest services fraud. The retainer theory of quid pro quo eliminates the possibility that an innocent lobbyist or politician will be convicted for depriving the public of honest services.

The Third and First Circuits have both explicitly approved such "retainer" theories of honest services fraud, although they called them by different names.

This sounds a whole lot like the charges in Kevin Ring's indictment. In U.S. v. Kemp, (Court of Appeals, 3rd Circuit; 2007), this concept was called a "stream of benefits". The appeals court reviewed the following instruction from the District Court and concluded that it "correctly described the law" (p. 36):

Where there is a stream of benefits given by a person to favor a public official, ... it need not be shown that any specific benefit was given in exchange for a specific official act. If you find beyond a reasonable doubt that a person gave an official a stream of benefits in implicit exchange for one or more official acts, you may conclude bribery has occurred.

Ellipsis in original

To be sure, Mr. Eliason characterizes the law fairly. He just doesn't like the law. One reason seems to be that Honest Services Fraud convictions carry a harsher penalty than illegal gratuity / bribery convictions:

Another concern is the criminal penalties involved. Gratuities is a relatively minor felony, punishable by only two years in prison. State conflict of interest or financial disclosure laws, often the subject of honest services charges, also may carry relatively modest penalties.

Honest services fraud, however, is punishable by up to 20 years. An honest services charge can be a gratuities or conflict-of-interest case on steroids, with potential punishment grossly out of proportion to the underlying crime.

Gentle readers, you may determine if Honest Services Fraud penalties are too harsh for those engaged in corruption. But we can all agree that the job of U.S. District Judge Ellen S. Huvelle is to apply the law correctly. There is no doubt that Judge Huvelle did her job right.

Honest Services Fraud - Political Contributions

The core of the indictment against Kevin Ring is a corruption charge known as "Honest Services Fraud". Counts III-VIII allege direct Honest Services Wire Fraud and Count I is a conspiracy charge related to Honest Services Fraud. For some reason, this crime is controversial. The Honest Services Fraud statute was passed by Congress some 20 years ago. Nevertheless, opinion writers like to claim that the law is vague or chaotic. With 20 years of case law behind it, Honest Services Fraud has developed structure through judicial interpretation. We'll concede that definition provided through statutes passed Congress is preferable to case law developed by judges, but case law has long been accepted in the United States.

Randall Eliason of the National Law Journal doesn't like the Honest Services Fraud law because it makes it easier for prosecutors to convict corrupt individuals:

[C]ourt decisions during the past decade made prosecutions under the federal bribery and gratuities law more difficult. Courts have required the prosecution to link a particular gratuity to a particular "official act" and have narrowly interpreted the term "official act" in the statute...

By charging honest services fraud in federal corruption cases, prosecutors are able to avoid these holdings. Even in cases in which bribery or gratuities could be established, it will often be easier simply to charge the same conduct as an honest services violation and not worry about the more finicky bribery statute.

This development is troubling for several reasons. Conduct that may constitute corruption often scrapes uncomfortably close to the edge of legitimate fundraising, patronage and other political activities. There are many things some might consider dishonest or sleazy that are not actually criminal.

The ACR Blog believes that Mr. Eliason's fears are misplaced, particularly his fear that Honest Services Fraud may "scrape uncomfortably close" to criminalizing legitimate fundraising. Case law protects fundraising. In 1991, the U.S. Supreme Court issued McCormick v. United States which made it virtually impossible to gain a corruption conviction based on a campaign contribution, even if the contribution was not "voluntary". In USA v. Kevin A. Ring, U.S. District Judge Ellen S. Huvelle incorporated case law created by McCormick in her jury instructions:

JURY INSTRUCTION NO. 27
CAMPAIGN CONTRIBUTIONS

The law recognizes that virtually every campaign contribution is given to an elected public official because the giver supports the actions done or to be done by the elected official. The Supreme Court 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 actions in the future.

Lobbyists often donate to the political campaigns of public officials, and there is nothing illegal about this practice. Official actions that advance the interests of a lobbyists clients, taken shortly before or after campaign contributions are solicited or received from the lobbyist, are perfectly legal and appropriate. You may not consider campaign contributions or fundraisers as part of the illegal stream of benefits that Mr. Ring is charged with providing to certain public officials.

We don't know how Judge Huvelle could explain the law any more clearly. It is inconceivable, given this instruction, that Mr. Ring will be convicted of Honest Services Fraud due to a campaign contribution.

We agree with Mr. Eliason that "there are many things some might consider dishonest or sleazy that are not actually criminal." But his contention that campaign contributions and/or fundraisers are one of those things widely misses the mark.

USA v. Kevin Ring: Jury Instructions (Part II)

John Doolittle and a Quid pro Quo

We're still reviewing the jury instructions provided by U.S. District Judge Ellen S. Huvelle in the case of USA v. Kevin A. Ring. Let's look at:

JURY INSTRUCTION NO. 54

COUNT VIII: HONEST SERVICES WIRE FRAUD - CO-CONSPIRATOR LIABILITY

In this instruction, Judge Huvelle gives the jury a list of items it must find in order to find Kevin Ring guilty of this specific count. We're most interested in the second item on the list:

In order to find the defendant guilty of honest services wire fraud in Count VIII ... you must find find beyond a reasonable doubt the following:

(2) that one of the co-conspirators committed honest services wire fraud by compensating Julie Doolittle as a means to provide a quid pro quo to Congressman John Doolittle.

If my reading comprehension and logic are right, in order to find Kevin Ring guilty of Count VIII, the jury must first find that someone engaged in a quid pro quo arrangement involving former Rep. John Doolittle (R-Calif.). Judging from the jury instruction, the thing of value Mr. Doolittle likely received was the compensation his wife Julie received from her "job" with Jack Abramoff. It isn't clear what, if any, official action performed by Mr. Doolittle that the jury may find.

Suffice it to say that if the jury finds Mr. Ring guilty of Count VIII, both Mr. and Mrs. Doolittle are in serious danger.

==

See Also: USA v. Kevin Ring: Jury Instructions (Part I)

USA v. Kevin Ring: Jury Instructions (Part I)

Influence, Access and Quid pro Quo

U.S. District Judge Ellen S. Huvelle has reviewed multiple versions of proposed jury instructions from the prosecution and defense. She has considered the legal arguments of both sides. Now she has issued the instructions she will give to the jury in USA v. Kevin A. Ring. Fortunately for all of us, Beth Sussman at National Journal has posted Judge Huvelle's jury instructions for us to examine. Let's take a close look at a few:

Jury Instruction No. 42 is found on pages 53-54 of 72 of the .pdf. These pages are labeled pages 49-50.

JURY INSTRUCTION NO. 42

HONEST SERVICES WIRE FRAUD - FIRST ELEMENT: SCHEME OR ARTIFICE TO DEFRAUD

...

The thing of value must be given with the intent to influence the public official in the performance of his or her official actions. This requires some specific quid pro quo (a Latin phrase meaning "this for that" or "these for those"), that is, a defendant must intend to receive an official action in return for the receipt by the public official of a thing of value. The defendant must intend that the public official realize or know that he or she is expected, as a result of receiving this thing of value, to exercise particular kinds of influence^[1] or decision-making to benefit the giver as specific opportunities to do so arise.

Furthermore, it is not necessary for the government to prove that the defendant intended to induce the public official to perform a set number of official actions in return for the things of value. The quid pro quo requirement is satisfied so long as the evidence shows a course of conduct of giving things of value to a public official in exchange for a pattern of official actions favorable to the giver. Thus all that must be shown is that things of value were given with the intent of securing official action(s) in return^[2]. For example, things of value may be given with the intent to retain the official's services on an "as needed" basis, so that whenever the opportunity presents itself, the official will take an offical action on the giver's behalf.

However, as I previously instructed, a scheme or artifice to deprive the United States and its citizens of a public official's honest services is not proved if the thing of value is given only in order to buy favor or generalized goodwill^[3] from a public official who either has been, is, or may at some unknown, unspecified later time, be in a position to act favorable to a giver's interests.^[4]

Emphasis in original

¹ Notice that the purchase of "influence" is illegal.

² The government must only prove that things of value were given with the "intent of securing official action[s] in return". Notice that there is no need to show that a specific thing of value was given in exchange for a specific official action and that such an agreement was made at the onset of the exchange. Our understanding is that the government must identify which official actions were purchased even though the defendant may not have identified the official action prior to the exchange.

³ In other words, the purchase of "access" is not illegal.

⁴ If a thing or things of value are given to a public official merely because the public official in "in a position to act favorable to a giver's interests", there is no crime. Judge Huvelle is giving this instruction to the jury in order to inform the jury of case law created by USA v. Sun-Diamond Growers of California. The defense relies heavily on this 1999 Supreme Court case in its claim that there must be a specific thing of value given in exchange for a specific official actions for a crime to exist. As we shall see in our promised post on relevant case law later this weekend, Judge Huvelle has interpreted Sun-Diamond correctly, and the defense has misinterpreted it.

What Doolittle - Probably - Didn't Do

The ACR Blog admits that is not a big fan of former Rep. John Doolittle (R-Calif.). Mr. Doolittle may have gone to Congress with good conservative intentions, but somewhere along the line he seems to have lost his way. But this is not another piece about something unseemly that former Rep. Doolittle did, but rather about something that we believe he did not do.¹ In the interest of fairness to Mr. Doolittle, the ACR Blog wants to point out that we have seen no evidence tying him personally to some² of the earmarks that were received by municipalities located in his northern California congressional district.

On this subject: most conservatives don't like earmarks (pork barrel spending) for obvious reasons. On the other hand, Team Abramoff seems to have recognized early on that delivering earmarks for their clients by corrupting the appropriations process was a sure-fire way to retain those clients, and also an excellent excuse to charge them higher fees. Not only that, but when the "get-nots" saw what the "gets" were getting, the "get-nots" were certainly more open to being lured in as new clients. This is why Mr. Abramoff once famously referred to the Appropriations Committee as a "favor factory."

Fortunately for Team Abramoff, Kevin Ring had solid connections with a key House Appropriations subcommittee. First, a little background. From paragraph 15 of the Kevin Ring indictment:

From in or about January 2003 through in or about January 2005, Representative 4 [Ernest Istook] served as the chairman of a subcommittee of the U.S. House of Representatives Appropriations Committee before which defendant RING's clients had pending and anticipated matters. As Chief of Staff, [John] Albaugh's primary responsibilities included oversight of issues relating to the subcommittee, including appropriations requests.

Now let's read paragraph 38 of the indictment:

38. On or about March 19, 2003, shortly after Abramoff spoke to Representative 4 [Mr. Istook], Abramoff sent an email to RING and other members of the lobbying team in which Abramoff told them that Representative 4 had "basically asked us what we want in the transportation bill" and instructed them to "make sure we load up our entire Christmas list."

Note that there is only mention of Representative 4 (Mr. Istook) and no mention whatsoever of Representative 5 (Mr. Doolittle). Referring to Mr. Albaugh's subsequent 2008 decision to plead guilty to charges he arranged earmarks for "lobbyist C", Mr. Ring. Again there is no mention of Rep. Doolittle. Roll Call reported:

In the wake of an admission by the top aide to then-House Appropriations cardinal Ernest Istook (R-Okla.) of exchanging earmarks for concert tickets and free meals, an analysis by Taxpayers for Common Sense found that clients of a Jack Abramoff associate received more than $16 million in earmarks in the fiscal 2004 transportation spending bill.

Oink oink - that's a lot of pork. But rather than look at the whole pig, let's just focus in on two cutlets.

When Team Abramoff relocated to Greenberg Traurig in January 2001, the City of Lincoln signed on as a new client and Kevin Ring became their lobbyist. On July 9, 2002, the City of Elk Grove, Calif (also in Northeast California) filed a Registration form indicating they too were retaining Greenberg Traurig and hiring Mr. Ring as their lobbyist. Prior to this date, the City of Elk Grove had not seen fit to retain the services of a lobbyist. Did these investments "pay off"?

From Roll Call:

In its analysis [of the FY2004 transportation spending bill], Taxpayers for Common Sense found that the Choctaw Mississippi Band received $1.4 million for a Choctaw Roads project; the city of Elk Grove received two earmarks, $300,000 for the Sheldon Road-State Route 99 interchange and another $960,000 for a “traffic operations center”; the city of Lincoln received four earmarks, $500,000 for expansion of regional buses, $1 million for the Lincoln Boulevard Improvement Project, $2 million for the Lincoln bypass-State Route 65 Ferrari Interchange construction and $250,000 for the Auburn Ravine Bridge.

Not a bad return on investment³. But just as we cautioned our gentle readers to be wary of assuming that a rogue staffer means a rogue boss, just because Mr. Ring once worked for Mr. Doolittle does not necessarily mean Mr. Doolittle bears responsibility for Mr. Ring's delivery of earmarks - even if the results did benefit entities in his Congressional district⁴.

Indeed, Todd Boulanger testified last week in court that Rep. Doolittle was "cheap"; when pressed by defense attorney Andrew Wise, Mr. Boulanger further explained that Rep. Doolittle "didn't believe in spending money." While these statements were not necessarily intended to be delivered as compliments, the ACR Blog wants to acknowledge and applaud Mr. Doolittle for whatever actions he did take while he was in Congress to hold the line on federal spending.

So where did Mr. Ring's apparent influence with Mr. Albaugh come from? Again, from Roll Call:

Albaugh, in fact, had worked for Istook since he was first elected in 1993, serving as his chief of staff from 1998 until Istook left office in January 2007.

From paragraph 7 of Kevin Ring's indictment:

From in or about November 1993 to in or about 1998, defendant KEVIN A. RING worked as a staff member in the office of a Member of the U.S. House of Representatives (Representative 5).

In other words, Mr. Ring and Mr. Albaugh both began their careers as House staffers in the same year (when the GOP was still a minority). Interestingly, in or around 1995, Reps. Doolittle and Istook would become two of the four co-founders of the Conservative Action Team, which would ultimately morph into the powerful Republican Study Committee:

However, it [the RSC] was almost immediately [in or around 1995] refounded [after Newt Gingrich had shut it down] as the Conservative Action Team by Dan Burton of Indiana (the last chairman of the original RSC), Sam Johnson of Texas, John Doolittle of California and Ernest Istook of Oklahoma. The four founders alternated as chairmen throughout the next two Congresses until David McIntosh of Indiana became chairman in 1998.

According to Mr. Ring's indictment, "(d)uring 1999, defendant RING served as executive director of a Republican caucus in the U.S. House of Representatives." That would be the group cited above. While we cannot be certain, it seems reasonable to hypothesize that Mr. Ring and Mr. Albaugh developed a close professional relationship during these early years when they were both young staffers, with both of their bosses being co-founders of what would become a powerful GOP group. Their relationship seems to have endured long after the time Mr. Ring left Rep. Doolittle's employ in 1998, and thus the lack of any evidence to suggest Rep. Doolittle's direct involvement in these FY2004 earmarks coupled with him being "cheap" (in the words of Mr. Boulanger) makes it plausible that at least on this score, Rep. Doolittle comes out clean.

==

¹ There is always the possibility that additional emails and/or other evidence may come to light that will cause the ACR Blog to re-evaluate our assessment that Mr. Doolittle was not involved in the matters discussed in this post.

² Emphasis here is on the word some.

³ Not coincidentally, after Mr. Ring left Greenburg Traurig and moved to Barnes and Thornberg, both the Cities of Elk Grove and Lincoln terminated their relationship with Greenburg Traurig and hired Barnes and Thornberg.

⁴ Earmarks per se are not illegal of course, but the jury will decide whether the process of obtaining them via the "purchase of influence", as the prosecution alleges, is illegal.