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