A Corrupt Agreement

[B]ribery requires a specific intent to give or receive something of value in exchange for an official act. We note that evidence of a quid pro quo can be implicit, that is, a conviction can occur if the Government shows that [the defendant] accepted payments or other consideration with the implied understanding that he would perform or not perform an act in his official capacity. As we have recognized, the official and the payor need not state the quid pro quo in express terms, for otherwise the law’s effect could be frustrated by knowing winks and nods.

--U.S. v. Kemp (p. 41); Case law cited with approval in Skilling v. United States. Internal citations and quotes omitted.

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For the past few days, we've examined the post-Skilling environment for Honest Services Fraud (HSF) with an emphasis on how Skilling affects U.S. v. Kevin Ring. We've learned that although the Supreme Court's decision in Skilling found HSF cases built on a Failure-to-Disclose a conflict of interest to be unconstitutional, the top court's opinion hasn't created any visible changes to HSF involving bribery and kickback schemes. U.S. District Judge Ellen S. Huvelle has ruled that a jury may infer that Mr. Ring entered into a corrupt agreement with public officials based upon the evidence -- the government need not show an explicit corrupt agreement.

Today we look at the plea documents of two public officials, Ann Copland and John Albaugh, to see if we can infer that the public officials themselves understood that things of value (TOVs) were being exchanged for official acts.

Ann Copland

From Ms. Copland's Factual Basis for Plea (Paragraph 5):

[F]rom March 2002 through May 2004, defendant COPLAND took and agreed to take a variety of official actions at the request of Abramoff, Boulanger, Ring and others working with them. Defendant COPLAND took these official actions based in part on the fact that she was receiving and wanted to continue receiving things of value from Abramoff, Boulanger, and Ring. Defendant COPLAND understood that by taking official action which was beneficial to the lobbyists and their clients, she would continue to receive and enjoy these things of value. Defendant COPLAND also understood that the lobbyists were providing her things of value in order to influence her in the performance of her official actions.

Uhh. Not a whole lot of inferring need be done here. Ms. Copland admits that she "understood" that the TOVs were dependent on her performance of official acts.

John Albaugh

OK. So Ms. Copland's Factual Basis lined up nicely to prove our point. What about Mr. Albaugh's Factual Basis (Paragraph 8)?

ALBAUGH solicited and accepted a stream of things of value from Lobbyist C [Kevin Ring] and others with the intent to be influenced in his official actions and to agree to take official actions at Lobbyist C's request. ALBAUGH understood Lobbyist C and others provided the stream of things of value with the intent to influence or reward ALBAUGH for his official actions and to deprive the House of Representatives and the public of his honest services.

Did that say Mr. Albaugh accepted TOVs with the intent to agree to take official actions? Ouch. And again, we don't have to infer that Mr. Albaugh "understood" that TOVs were meant to influence or reward his official acts -- he admits it.

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Judge Huvelle's interpretation of the law was consistent with precedent when she determined that a jury could infer that Mr. Ring entered an agreement to exchange TOVs for official acts. This should be pretty easy for the jury to do. After all, Mr. Ring's co-conspirators admit that they understood that the TOVs were linked to official acts.