Public Integrity Section trial attorney Peter Koski said the high court’s June 24 ruling in Skilling v. United States has “no impact whatsoever” on the prosecution of Ring.
Ms. Yachnin corroborated Mr. Scarcella's reporting, writing (Hat tip to an anonymous commenter for providing the text of the Roll Call article):
Federal prosecutor Peter Koski told Huvelle that the Justice Department does not plan to drop any of the eight charges it has filed against Ring, including five counts of honest services fraud.
“The Skilling opinion has no impact whatsoever on this case,” Koski said.
This is in alignment with the ACR Blog's opinion that "Skilling provides no relief" to Mr. Ring.
In conjunction with Tuesday's hearing, Judge Huvelle also issued a scheduling order. The order tells us that Mr. Ring's retrial will begin October 28, 2010.
Additionally, and probably more significant to the defense, Judge Huvelle ordered the DoJ to provide a Bill of Particulars (BoP) to Mr. Ring and his defense counsel:
On or before July 13, 2010, the government shall file a bill of particulars identifying which of the overt acts listed in Count I ... are relevant to an alleged scheme to provide public officials with things of value in exchange for “official acts," as that term is defined in Jury Instruction No. 31 of the first trial [Dkt. 113]. The bill of particulars shall specify the identities of the public officials, things of value, and official acts at issue.
Roll Call's Ms. Yachnin reports that Judge Huvelle reminded prosecutors during the hearing that the post-Skilling legal landscape is a different place:
“This is not the same arena we were in before,” Huvelle said. She ordered government prosecutors to outline “what official acts were the result of bribery, who did they target to do what” in documents due later this month.
We're certainly hopeful that we'll get to see the BoP. Specifically, we're looking forward to confirming "the identities of the public officials" who participated in this scandal and the "official acts" they performed. It seems very unlikely to the ACR Blog that the BoP will be helpful to Mr. Doolittle (R-Calif.) in his search for employment, nevertheless, this is an undeniably positive development for Mr. Ring and his defense team at Miller Chevalier. It also seems more than fair to Mr. Ring. Despite our belief in his complicity in this scandal, we want Mr. Ring to be fully aware of the charges against him in order to provide him with a fair trial in a court of law.
5 comments:
from the National Journal...
This week's hearing in U.S. District Court demonstrates the higher hurdles that the government could face after the decision. Justice Department trial attorney Peter Koski told Judge Huvelle that the federal government doesn't believe that the Supreme Court's decision necessitated a change in the case against Ring. "The Skilling [decision] has no impact on this case," Koski said. "It was a bribery of honest services, and that was the only theory that went to the jury."
Huvelle, however, was skeptical of the government's argument. "Skilling was a waste of time?"
Koski answered "no" but then reiterated that the decision was not relevant to the Ring case.
Andrew Wise, Ring's attorney, countered: "I find it remarkable the government can get up here and say Skilling has no effect on this case. It was part of the case and the foundation upon which it was built."
Ring still faces charges of honest-services wire fraud, plus offering illegal gratuities to public officials and conspiracy to commit both crimes. In Ring's first trial, he was accused of depriving the U.S. and its citizens of the honest services of public officials by offering tickets and meals to a former Justice Department official and various former members of Congress and their aides.
Huvelle questioned many of the assertions that the government planned to make in the trial, including the definitions it was using to charge Ring. For example, Huvelle said, "we can no longer be loose on the definition of 'official act' " when considering charges that Ring provided illegal gratuities in exchange for an "official act." She also said that the government must define "bribery" more clearly. "I want to know specifically [which public official] was targeted" and how that official was corrupted, she said to the government.
For example, Huvelle said, "we can no longer be loose on the definition of 'official act' " when considering charges that Ring provided illegal gratuities in exchange for an "official act."
I wish my Washington correspondent could have attended the hearing. Without context, this statement doesn't make sense to me. Skilling didn't touch the illegal gratuities statute, and Skilling only tangentially touched the definition of an "official act" (if at all).
I'm a complete outsider, but it seems to me that the most significant aspect of Skilling was the narrowing of HSF to bribery and kickback schemes. Does Skilling make the HSF law identical to the bribery law? My interpretation is that Skilling, while narrowing HSF, did not make HSF the same as bribery.
~ACR
My reading of the opinion is HSF is only constitutional if specific bribes or kick-backs occur. RBG didn't want to totally tell Congress they were wrong (Scalia disagreed), but she felt (and the majority agreed), that you need to be very specific on what deeds were done and for what. The DOJ no longer gets to say that HSF is whatever they say it is. From now on, the DOJ will have to tie specific things of value to specific and identifiable official acts. In other words, they will have to prove bribery.
I have to admit, I am no fan of the DOJ but I was pretty surprised how bold they were in this exchange. Did they really think things hadn't changed?
ACR
Check out this piece by the former head of the Public Corruption unit in DC:
http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202463238255&The_future_of_honest_services_fraud&slreturn=1&hbxlogin=1
"Another area of concern is cases involving a series of gifts to a public official in connection with official acts. Bribery requires proof of a quid pro quo: that a particular official act was influenced by the gift. Even a federal gratuity charge requires proof that a particular gift was for, or because of, a particular official act. Honest-services fraud was frequently employed when there was a stream of gifts to a public official and a corresponding series of official acts, but proof that a specific gift corresponded to a particular act was weak or absent. Most of the guilty pleas in the Jack Abramoff investigation, for example, have involved this type of honest-services charge.
After Skilling, such cases are no longer viable under § 1346 unless the government can prove a direct bribery quid pro quo — a much higher evidentiary hurdle. Again, this is not entirely a bad thing; to the extent such cases involved mere gratuities, a 20-year felony was overkill, and clear statutory boundaries are crucial in the area of political corruption..."
Anon (July 10, 2010 10:06 AM)
the DoJ could be taking one of two positions:
1. Skilling kept the Retainer Theory of HSF intact. This is an aggressive position, but I like it. (I would also like to see my favorite football team go for it on 4th-and-1 more often. I've mentioned I'm not a lawyer before. I'm also not a football coach.)
-or-
2. The DoJ could be arguing that the prosecution of Ring and other Abramoff scandal participants meets the bribery-statute-level quid pro quo.
Honestly, my money would be on Possibility #2, even though I'd like to see #1.
~ACR
Post a Comment