Update

We're sure that many people have noticed that the ACR Blog has been a bit quiet lately. Trust us, there is a flurry of activity behind the scenes. A regular reader suggested that we acquire the trial transcripts for U.S. v. Kevin Ring which recently became available. (Hat tip to that reader!) We are overwhelmed with information to the point that we've reached a sort of bloggers' paralysis. We don't know where to start, and we're not even half way through the transcripts.

Some interesting tidbits that may or may not appear in future blog posts:

1. Testimony about a witness's brother in South Carolina.

2. Ryan Thomas.

3. A person the ACR Blog has connected to Horace Cooper.

Should Kevin Ring's Retrial be in the Fall of 2010?

Today, defense attorneys filed a Motion to Continue in the case of U.S. v. Kevin Ring:

Kevin A. Ring, through undersigned counsel, respectfully moves this Court to vacate the June 21, 2010 trial date in the above-captioned matter and to continue the trial to a date certain in October 2010. The government opposes a continuance of the trial date but does not oppose the calendaring of a status date to discuss scheduling.

Mr. Ring's attorneys say that delaying the trial until October 2010 will allow the Supreme Court to issues opinions on three pending honest services fraud (HSF) cases before it. The HSF opinions may significantly shape the HSF statute or rule that it is unconstitutionally vague. According to the defense, because seven¹ of the eight² charges to be tried in the June 2010 retrial involve HSF, it makes sense to wait for the SCOTUS to issue its opinions. Then, all sides will be fully aware of the extent of the HSF law prior to the retrial. Mr. Ring's attorneys raise a second point, suggesting that postponing the retrial to October will make it more likely for potential witnesses to testify.

The ACR Blog is on record making a similar argument regarding witnesses:

It might even make sense to push back Mr. Ring's retrial date to the fall of 2010 in order to sentence all the defendants who may be potential witnesses in the retrial.

The defense tells us that the government opposes delaying the retrial. It will be interesting to see their reasoning. After all, the DoJ did not object to postponing sentencing for Michael Scanlon. Mr. Scanlon's attorneys cited the pending HSF cases before the Supreme Court as the primary reason to delay sentencing. If the SCOTUS finds HSF unconstitutional, it will reduce Mr. Scanlon's sentence. It seems to us that if it makes sense to defer Mr. Scanlon's sentencing over the pending HSF cases, it certainly makes sense to delay Mr. Ring's retrial.

We'll just have to wait and see why the DoJ thinks it is necessary to retry Mr. Ring before the ink is dry on the Supreme Court HSF rulings. At this point, we believe that delaying the retrial until October 2010 is perfectly reasonable.

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¹ The eighth count is an Illegal Gratuities charge related to alleged things of value given to admitted felon Robert Coughlin. This charge is not vulnerable to any decision coming from the Supreme Court.

² Two Obstruction of Justice counts were severed from Mr. Ring's indictment last summer. Those charges remain outstanding.

Team Abramoff: Hiring DC's Best Lawyers

Imagine that you were an ambitious House staffer in 2002 who scored some hot concert tickets from a Team Abramoff lobbyist in exchange for access to your boss. Or a high-ranking DOJ official who, after your timely intervention in an immigration matter, were rewarded with coveted tickets to the NCAA basketball tournament. Or maybe you were a highly-paid lobbyist yourself, and after checking your ethics at the door, traded anything you had for anything you could get.

But now some federal prosecutor has started poking around, asking questions of your friends and business associates. Word is out on the street that Todd Boulanger is singing like a canary and his lyrics include you. Who you gonna call? You need the best criminal defense lawyer in DC that you can afford. (Of course if you can't afford a lawyer, despite the high salary you earned, you ask for a public defender).

Washingtonian Magazine named the top 100 criminal defense attorneys in the Washington DC area in its December 2009 issue. Here's how the article starts out:

Would you pay $1,000 an hour for this man’s time? The best legal talent doesn’t come cheap—here’s why lawyers make what they do, how they make partner (or don’t), plus the top 1 percent of the area’s 80,000 attorneys.

No, it's not the $1,000 an hour rate that we find shocking - the article reveals that very few lawyers actually command this top rate. It's the fact that there are over 80,000 lawyers in the Washington DC area. The ACR Blog refuses to take the obvious cheap shot, and correlate the dire situation our country is in to the extremely large number of lawyers in the area.

Back to the subject at hand. As we scanned the list, name after name rang a bell for us. Let's start with Kevin Ring's attorney Andrew Wise. Yes, Mr. Wise made the top 100 list, as did his Miller Chevalier colleague Richard Hibey (who is also defending Mr. Ring). We have learned a lot from the filings of Mr. Ring's defense team. Not only have we discovered a lot of facts from the court documents, we've learned quite a bit of law from these attorneys along the way, too.

Here are some more of the top 100 criminal defense attorneys culled from the list, along with the name of the Abramoff scandal figure they either did (or currently do) represent:

Abbe Lowell Lawrence Robbins Richard Sauber Barbara Van Gelder Philip Inglima Carole Elder Bruce Laura Ariane Miller Plato Cacheris John Nassikas Stanley Brand Bernie Grimm Mark Tuohey Ralph Caccia Bradfrod Berenson W. Neil Eggleston George Terwilliger F. Joseph Warin Kevin Downey Henry Schuelke Barry Pollack

(Jack Abramoff) (David Safavian) (David Safavian) (David Safavian) (Shawn Vassell) (Trevor Blackann) (Tony Rudy) (Michael Scanlon) (William Heaton) (J. Steven Griles) (Shane Tessimond1) (Fmr Rep. Robert Ney) (Fmr Sen. Conrad Burns) (Susan Ralston) (Ralph Reed) (Tyco, Inc.) (Michael Mihalke) (Greenberg Traurig LLC2) (Greenberg Traurig LLC2) (Brian Mann, Aaron Stetter & Jeremy Diehl)

Apologies if we missed anyone. When you add in the names of Mr. Wise and Mr. Hibey, no fewer than twenty-two of these top 100 criminal defense attorneys have found some level of employment thanks to Jack Abramoff. It certainly appears that when it comes time to defend themselves, most of those involved in the Abramoff scandal have chosen to hire the very best that money can buy.

In the case of David Safavian, all three of his attorneys made the list. Yet despite this stellar representation, Mr. Safavian was found guilty - twice. Apparently, some scandal figures are in so far over their heads, even three top-notch attorneys can't get him off. As we think about it, this is very comforting to know as the Abramoff scandal continues to unfold.

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¹ Although most people would not consider Mr. Tessimond to be an Abramoff scandal figure, long-time readers know that I have had a special interest in him. Click here and here for more information and follow the links to go as deeply as you wish.

² Greenberg Traurig hired these two attorneys in early 2004 to conduct an external investigation into the Abramoff corruption.

DoJ Wanted Fraser Verrusio to be "Confidential Source"

Star DoJ attorney M. Kendall Day filed a Motion in Limine today (a federal holiday¹) in the case of U.S. v. Fraser Verrusio. The DoJ is asking U.S. District Judge Richard W. Roberts to prohibit Mr. Verrusio from making certain arguments in Verrusio's upcoming corruption trial. First, the DoJ would like to preclude Mr. Verrusio from arguing that his prosecution is a vindictive one. Secondly, the DoJ wants to prohibit Mr. Verrusio from using summaries of witness interviews and other documents prepared by law enforcement to impeach government witnesses.

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Vindictive Prosecution

From the Motion in Limine:

The government anticipates that Defendant Verrusio may attempt at trial to argue or introduce evidence that the government vindictively selected him for prosecution because he declined to become a confidential source for the FBI in an unrelated investigation. To be clear, Verrusio’s decision - in an unrelated investigation involving different prosecutors and FBI agents - had nothing to do with the charging decisions in this case...

By way of background, on September 14, 2008, Verrusio was interviewed by law enforcement agents (“interviewing agents”) about the facts that ultimately led to the charges in this indictment. At the conclusion of that interview, Verrusio asked whether the interview stemmed from his decision not to become an FBI confidential source in an investigation conducted by another agent (“source agent”). The interviewing agents advised Verrusio that the two matters - his interview about the World Series Trip and his decision not to become a confidential source - were separate and completely unrelated. Nevertheless, on September 18, 2008, Verrusio contacted the source agent and asked whether questions regarding the World Series trip in 2003 had anything to do with Verrusio’s decision not to become a source for the source agent. The source agent, too, advised Verrusio that the two matters were entirely unrelated, and that Verrusio’s decision was not being held against him in any way. Later, prior defense counsel for Verrusio asked the same question of government counsel, namely whether the two issues were in some way related; government counsel likewise responded that the two matters were not related in any way.

Whoa! What's that? The FBI wanted Mr. Verrusio to become a "confidential source" in an unrelated matter? Against whom would the DoJ want Mr. Verrusio provide information? We're guessing that the DoJ wanted Mr. Verrusio to provide information against his former boss, Rep. Don Young (R-Ak.). Remember that Rep. Young has been designated as United States Representative A in an unrelated criminal investigation. Often, when individuals are given cutesy names like that, we later learn that they were subjects of a federal investigation. Since this case is an unrelated matter (presumably unrelated to the Abramoff scandal), it is outside the scope of the ACR Blog.

With respect to Mr. Verrusio's argument that his prosecution is related to his refusal to help the Justice Department root out corruption in an unrelated case, we don't find his claims persuasive. In the summer of 2008, it was apparent to the DoJ that Team Abramoff lobbyist Kevin Ring would not cooperate. In early September 2008, Mr. Ring was indicted and the preparation for his trial was well underway. Prosecutors knew that fellow Team Abramoff lobbyist Todd Boulanger would provide effective testimony against Mr. Ring (and Mr. Boulanger's testimony was indeed effective). In September 2008, the DoJ set out to secure Mr. Boulanger's plea deal and assure his cooperation. The ACR Blog believes that the September 18, 2008 interview of Mr. Verrusio was part of a string of events to build a case against Mr. Ring. Consequently, we do not believe that Mr. Verrusio's indictment is vindictive.

Let's look at this in timeline form:

AUGUST 29, 2008
Trevor Blackann signs a Factual Basis for Plea indicating that he would cooperate with the government. Mr. Blackann went on the same World Series trip as Mr. Verrusio. Mr. Blackann's Factual Basis identifies the roles of Todd Boulanger ("Lobbyist D"), James Hirni ("Lobbyist E"), and Mr. Verrusio ("Staffer D") related to the World Series trip at this time.

SEPTEMBER 5, 2008
The indictment of Kevin Ring is unsealed.

SEPTEMBER 14, 2008
Mr. Verrusio is interviewed about the events that appear in his indictment.

NOVEMBER 21, 2008
Team Abramoff lobbyist Jim Hirni is formally charged on events related to the World Series trip and becomes a cooperating witness. Mr. Hirni relates facts about Mr. Boulanger's involvement in the World Series trip. Mr. Verrusio is identified in these court documents as "Staffer D".

JANUARY 16, 2009
Todd Boulanger signs plea agreement, promising to cooperate with prosecutors. Mr. Boulanger's Factual Basis for Plea identifies acts related to the World Series trip and Mr. Verrusio ("Staffer D").

MARCH 6, 2009
Fraser Verrusio is indicted related to events including the World Series trip.

SEPTEMBER 2009
Mr. Boulanger appears as a government witness in Mr. Ring's corruption trial.

While the ACR Blog finds the "confidential source" story extremely interesting since we believe it relates to an investigation of Rep. Young, it doesn't appear that the "confidential source" episode led to a vindictive indictment against Mr. Verrusio. Other individuals involved in the World Series trip were held criminally accountable. The evidence suggests that the DoJ's interest in Mr. Verrusio's World Series trip was a result of their strategy to obtain Mr. Boulanger's cooperation in the trial of Kevin Ring.

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Impeachment of Witnesses

The other item in the Motion in Limine is far less interesting. The DoJ does not want Mr. Verrusio to be able to use documents authored by law enforcement to be used to impeach government witnesses. The DoJ claims that only a witness's own statements can be used to impeach a witness. Since documents authored by law enforcement are not the witnesses' own statements, they can't be used for impeachment.

We can't believe that this is the first time a court has had to confront this matter. Surely on-point case law exists. This is so insignificant, we don't care what the resolution is.

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¹ UPDATE 5:00 p.m. CST We just reviewed Judge Robertson's scheduling order. Today was the deadline for Motions in Limine. There probably isn't a lot to read into the fact that this motion was filed today.

Who is Ryan Thomas?

Ryan Thomas is a former staffer to former Sen. Conrad Burns (R-Mont.). Mr. Thomas is of particular interest to the ACR Blog since he was named a co-conspirator during the trial of Kevin Ring. We don't know what Mr. Thomas did to earn such a designation from the DoJ, but we'd like to take this opportunity to take a look at a couple of highlights of Mr. Thomas' career.

Super Bowl 2001

Federal investigators have long been interested in a Team Abramoff sponsored trip to the 2001 Super Bowl. This trip is mentioned as early as the January 2006 Jack Abramoff's Factual Basis for Plea (Paragraph 32; Page 23 of .pdf). During Mr. Ring's recent corruption trial, fellow Team Abramoff lobbyist Todd Boulanger testified that three Hill staffers were on this trip:

• Will Brooke (staffer to Senator Conrad Burns, R-Mont.)


• Ryan Thomas (staffer to Senator Conrad Burns, R-Mont.)


• Tim Berry (staffer to Rep. Tom DeLay, R-Sugar Land)

We're not going to spend a lot of time on these other individuals right now. We've written about Tim Berry before, wondering if he could be incented to provide information about his former boss and our former Congressman, Tom DeLay. While we've mentioned Will Brooke in passing before, we've never thought that scrutiny of Mr. Brooke would be fruitful. Mr. Brooke worked at Greenberg Traurig for a period of time. Shortly after the Justice Department announced a plea deal with Mr. Abramoff (January 3, 2006), Mr. Brooke told the Bozeman (Mont.) Daily Chronicle about the Super Bowl trip and claimed that he sought out the Justice Department to tell his story (January 7, 2006).

We're most interested in Mr. Thomas, the alleged Abramoff scandal co-conspirator. Best we can tell, Mr. Thomas has not spoken publicly about the events surrounding the Super Bowl trip. Roll Call's Mary Ann Akers reported that Mr. Thomas left Sen. Burns' staff in February 2006, just a month after Abramoff's plea. Roll Call suggests that Mr. Thomas left due to the Abramoff investigation.

Super Bowl tickets could be considered a thing of value.

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Saginaw Chippewa

Just as investigators interested in Mr. Thomas' Super Bowl trip in 2001, the DoJ also seems interested in a specific appropriation Mr. Thomas worked on. The WaPo's venerated Susan Schmidt wrote in 2005:

A $3 million grant from a federal program intended for impoverished Indian tribal schools went to one of the richest tribes in the country under pressure from Sen. Conrad Burns (R-Mont.), who oversees the budget of the Bureau of Indian Affairs.

The tribe that last year received the money for a new school, the Saginaw Chippewas of Michigan, was at the time a client of Jack Abramoff, a prominent Republican lobbyist whose practices are the subject of multiple federal investigations...

Ryan Thomas, a Burns staffer on the appropriations subcommittee, took the lead in tangling with Interior officials over the funding, former department officials said. He did not respond to requests for comment yesterday.

Thomas had close ties to some members of Abramoff's lobbying team, former Abramoff associates said. He and Will M. Brooke, Burns's chief of staff, traveled to the 2001 Super Bowl on the Abramoff corporate jet, along with several staffers from the office of House Majority Leader Tom DeLay (R-Tex.)

Notably, the activity surrounding the Saginaw Chippewa school funding occurred in 2003, two years after the Super Bowl trip. The WaPo seems to be connecting the two events, though, and we have way too much respect for Sue Schmidt to think that she mistakenly connected two unrelated events. The ACR Blog concludes that it is possible that the 2001 Super Bowl trip and the 2003 Sag Chip school funding are related. In the opinion of the ACR Blog, "Tangling with Interior officials over the funding" of the Saginaw Chippewa school can be considered an official act.

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Ryan Thomas and the Kevin Ring Trial

Although he didn't appear as a witness, Mr. Thomas garnered attention in the Kevin Ring trial beyond the events surrounding the 2001 Super Bowl. Let's look at Government Exhibit 1043:

EXHIBIT 1043 1/7/2002 Email from Boulanger to Thomas;, "I got you"

In this email, Boulanger told a public official [presumably Thomas] that he was able to get him floor seats to an event and wrote, "I had to ask Jack directly, which means you are going to owe me for these.... date and project to be determined!!" (ellipsis in original), thereby clearly establishing the coconspirators' transactional approach to giving tickets.

If, as we believe, this exhibit refers to Mr. Thomas, the Justice Department may be able to prove that Team Abramoff provided Mr. Thomas with an illicit stream of things of value. While it isn't unreasonable to believe that the "date and project to be determined" could be the Saginaw Chippewa school, we also know that Mr. Thomas worked on projects for other Team Abramoff tribal clients. For example, during pre-trial discussion of GX 1043, Justice Department attorneys mentioned work that Mr. Thomas and Ann Copland (staffer for Sen. Thad Cochran, R-Miss.) did for the Mississippi Choctaw. GX 833 suggests to us that Mr. Thomas and Team Abramoff also worked on issues for the Pueblo Sandia.

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Given the numerous actions of Mr. Thomas recounted in the Ring trial and given that he was named a co-conspirator in the Abramoff scandal, we are fully expecting to learn more about Ryan Thomas.

Intrade Flips: Massachusetts Senate Race

Scott Brown now predicted to win Massachusetts Senate race

We are always quite hesitant to use the pages of the ACR Blog to display our partisan leanings. Please humor us for a minute.

Long time readers of the ACR Blog know that we admire the predictive ability of Intrade markets. For the first time, the smart money of Intraders now predicts that Republican Scott Brown will defeat Democrat Martha Coakley in the Massachusetts special election. Mr. Brown's chances are little better than a coin flip, but just a few days ago, Ms. Coakley was a 4:1 favorite.

We like the take of a reader at NRO's The Corner:

Subject: whoda thunk it?

the world is turned upside down. i mean, consider: our best hope to avoid a government takeover of the entire medical industry requires that massachusetts elect a conservative to the u.s. senate.

and if that were not enough — there's a good chance massachusetts will do it!

We still find it hard to believe. It's Massachusetts after all. But if Mr. Brown's momentum takes him across the finish line, be sure to DVR MSNBC. It will prove to be highly entertaining. Watch for that bulging vein on Keith Olbermann's forehead as he goes into apoplectic rage.

August 4, 2010: Michael Scanlon Sentencing

Michael Scanlon

Roll Call's Jennifer Yachnin reports ($):

U.S. District Judge Ellen Huvelle issued an order Wednesday scheduling Scanlon’s sentencing hearing for Aug. 4. He pleaded guilty in November 2005 to one count of conspiracy to violate federal laws including bribery and honest services fraud.

In addition to honest services fraud (HSF), Mr. Scanlon also pleaded guilty to bribery of public officials and money and property fraud. So even though the Supreme Court has three HSF cases pending, Mr. Scanlon will almost certainly remain an admitted felon even if the Supreme Court finds the HSF statute to be unconstitutional. That said, the Supreme Court's HSF decisions may affect Mr. Scanlon's sentence. From a Joint Motion to Set a Sentencing Date (.pdf) filed yesterday:

Pending before the Supreme Court are several cases challenging the honest services fraud statute and/or its application (collectively “honest-services fraud cases”). Mr. Scanlon believes that how the Supreme Court decides the honest-services fraud cases might impact calculation of both the loss amount to be determined under the sentencing guidelines and the restitution amount to be ordered by this Court. Accordingly, Mr. Scanlon requests that his sentencing and restitution hearings be set for August 2010, which is a date after the Supreme Court likely will have issued a decision in the honest-services fraud cases.

The government does not object to the defendant’s request to begin the sentencing process with the ordering of a PSR and to schedule the sentencing and restitution hearing for August 2010. Further, the parties agree that, regardless of any Supreme Court opinion, Mr. Scanlon’s plea agreement will remain in effect.

It doesn't appear that any defendants in the Abramoff corruption case will be sentenced prior to Kevin Ring's retrial tentatively scheduled for June. Judge Huvelle had previously expressed a preference that defendants be sentenced in time for the retrial. There are obviously many competing interests at play here.

1. The Justice Department seems to want to defer sentencing indefinitely, presumably to enable the department to report on the full extent of each defendant's cooperation in other cases.

2. Judge Huvelle would like to sentence defendants in order to give the defense "a fair opportunity" to call witnesses at Mr. Ring's retrial¹. Presumably, Mr. Ring and his defense team would like defendants to be sentenced for the same reason.

3. Defendants who have pleaded guilty to HSF would like sentencing to occur after the Supreme Court has issued its opinions on the pending HSF cases. Some defendants pleaded guilty to only HSF-related crimes. Others, like Mr. Scanlon, pleaded guilty to a number of crimes including HSF. Either way, the Supreme Court opinions have the potential of affecting the sentences.

Given those competing interests, we believe that Judge Huvelle is taking the right course of action. According to National Journal's Beth Sussman, Judge Huvelle "could further delay [Kevin Ring's retrial] if all the legal issues aren't worked out by the summer." It might even make sense to push back Mr. Ring's retrial date to the fall of 2010 in order to sentence all the defendants who may be potential witnesses in the retrial.

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Not all defendants who have pled guilty in Abramoff-related cases pled guilty to HSF. Trevor Blackann pled guilty to filing a false tax return and Robert Coughlin pled guilty to violating a conflict-of-interest statute. Other defendants like Todd Boulanger, Ann Copland and Jim Hirni pled guilty to a single HSF-related charge. We won't pretend to know what will happen to those defendants in the event that the Supreme Court finds HSF unconstitutional. Nevertheless, we suspect Messrs. Blackann and Coughlin now wish that their attorneys had recommended pleading guilty to HSF.

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¹ Although Judge Huvelle believes that sentencing defendants prior to Mr. Ring's retrial will make it more likely for those defendants/witnesses to testify, we don't fully understand why that is the case. We are not aware of any individual who was not able to testify at Mr. Ring's September 2009 trial because he had not yet been sentenced. In fact, several individuals who were awaiting sentencing after pleading guilty did testify at Mr. Ring's trial. See this post for further discussion.

April 8, 2010: Mark Zachares Status Conference

Mark Zachares

This news is a little dated, but on December 30, 2009, U.S. District Judge Ellen S. Huvelle deferred sentencing and continued a status conference in U.S. v. Mark Zachares until April 8, 2010. In 2007, Mr. Zachares pleaded guilty to a single count of conspiracy to commit Honest Services Fraud (HSF) (Section 1346) and wire fraud (Section 1343). According to the Information filed in that case, Mr. Zachares held a couple of position in the government of the Commonwealth of Northern Marianas Islands from 1994-2002. From 2002-2005, Mr. Zachares was a staffer on the House Transportation Committee. He worked for Rep. Don Young (R-Ak.) during this period. In a case unrelated to the Abramoff scandal, the Justice Department has referred to Rep. Young as "United States Representative A".

This development interests the ACR Blog because back in October, Judge Huvelle strongly urged the Justice Department to begin sentencing individuals in the Abramoff scandal. In this instance, Judge Huvelle ordered sentencing to be deferred. A similar situation occurred last week in U.S. v. John Albaugh. In contrast, Judge Huvelle is moving forward in sentencing Michael Scanlon.

Earlier, the ACR Blog posited that the DoJ would move forward in sentencing only those defendants in Judge Huvelle's court. The fact that we aren't moving toward sentencing in the cases of Messrs. Albaugh and Zachares means that this theory isn't correct.

Several weeks ago, a commenter to the ACR Blog suggested that the DoJ (and presumably Judge Huvelle, too) may not want to sentence persons who have pleaded guilty to HSF:

I think something else is going on. Since it seems from everything we read from the National Journal to the NYT to the Washington Post to Main Justice that the SCOTUS is likely to strike down HSF as unconstitutionally vague, (or less likely, to strongly narrow it - which would be legislating from the bench and not what Roberts or Alito said they wanted to do...)isn't it quite possible that the DOJ is trying to avoid a likely series of appeals? Scanlon is in a different league than Hirni and a lot of these guys. That guy was pocketing millions and giving kick backs. Hirni was merely an aggresive lobbyists back when the rules were different.

Mr. Zachares' conspiracy conviction involves a single scheme or artiface to defraud involving both HSF and wire fraud. This case is similar to that of Mr. Scanlon, but it differs in one important aspect. Mr. Scanlon pleaded guilty to a single count of conspiracy to commit wire fraud (Section 1343), HSF (Section 1346) as well as fraud (Section 1341). But the Information in Mr. Scanlon's case alleges more than one scheme or artiface to defraud. At least one scheme in Mr. Scanlon's plea agreement relies on wire fraud alone and does not allege HSF.

So the ACR Blog is, for the most part, beginning to accept our commenter's explanation on how these cases will be treated, but we have one modification. If, in a defendant's plea, the scheme or artiface to defraud depends on HSF (Albaugh, Zachares), the Court will likely defer sentencing. If at least one alleged scheme or artiface does not rely on HSF (Scanlon), then the Court will move forward in sentencing.

John Albaugh's Status

The following information related to John Albaugh's status conference today appeared on PACER:

Minute Entry for proceedings held before Judge Ellen S. Huvelle: Status Conference as to JOHN CARLTON ALBAUGH held on 1/7/2010 ... Status Conference set for 7/1/2010 at 09:45 AM in Courtroom 14 before Judge Ellen S. Huvelle.

The ACR Blog believed it was likely that Judge Huvelle would set a sentencing date for Mr. Albaugh's Honest Services Fraud (HSF) conviction. That didn't happen. The next status conference is scheduled for July 2010, after the Supreme Court will issues opinions on three HSF cases. It seems Judge Huvelle wants to wait for the Supreme Court to issue those opinions before sentencing Mr. Albaugh for HSF.

Bitter Pill

Jennifer Yachnin of Roll Call ($) reports on a curious development related to Kevin Koonce, a former Legislative Director for Sen. Judd Gregg (R-N.H.):

A former top aide to Sen. Judd Gregg (R-N.H.) who became a subject of the wide-ranging influence-peddling probe centered on ex-lobbyist Jack Abramoff is seeking an internal review of a Justice Department prosecutor, accusing the federal investigator of professional misconduct.

Kevin Koonce, who worked as Gregg’s legislative director from 2002 to 2004 before leaving Capitol Hill, provided Roll Call with a copy of the complaint he filed with the DOJ’s Office of Professional Responsibility in late December.

In that three-page letter, Koonce accuses prosecutor Kendall Day, a trial attorney in DOJ’s Public Integrity Section, of “harassment, prosecutorial misconduct, and abuse of power” during the department’s investigation into him in 2009.

Despite the allegations of “harassment, prosecutorial misconduct, and abuse of power,” Mr. Koonce was never charged with any crime.

We're left to wonder what exactly Mr. Koonce accuses Kendall Day of doing wrong. We only get the vaguest of allegations in this harassing complaint filed with the DoJ's Office of Professional Responsibility. As Ms. Yachnin reports in her article, very few complaints result in a finding of misconduct, and virtually no complaints not filed via "judicial reviews or referrals" even make it to a formal investigation. Mr. Koonce may find his actions emotionally satisfying, but ultimately, we don't think his complaint will lead to any formal investigation.

Mr. Koonce is upset that he was indirectly identified as "Staffer F" in Todd Boulanger's Factual Basis for Plea. He grumbles "[I]t took the media, my bosses, the blogosphere, and my professional colleagues less than a day to deduce that ‘Staffer F’ was in fact ‘Kevin Koonce.’"

“Todd thought everyone that accepted tickets was working for him, and that just wasn’t the case,” Koonce said in an interview. “I never did anything in the office that I thought was wrong, never mind illegal. ... I was a guy who was like thousands of other staffers.”

As we've said many times before, we don't like the "Everyone does it" defense that Mr. Koonce employs here. As to whether or not Mr. Koonce did anything wrong, we'll let you, gentle reader, make that determination. From Mr. Boulanger's Factual Basis:

a. On September 27, 2002, defendant BOULANGER emailed Staffer F that it was good to see him the other night and seeking Staffer F's help in preserving a $3.5 million earmark that was favorable to one of BOULANGER's lobbying clients, which earmark had been included in the House version of a defense appropriations bill.

We don't know if Mr. Koonce actually helped preserve the $3.5 million earmark, but if he did, it would be convincing evidence that Mr. Koonce is not a member of the conservative Tea Partier wing of the Republican Party.

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b. On January 22, 2003, defendant BOULANGER emailed Staffer F seeking his help in defeating a proposed amendment to a defense appropriations bill which would have enabled an Alaskan entity to establish a gambling casino, thereby threatening the market share of Native American tribes represented by Firm B which already owned or operated gambling casinos. Staffer F responded to defendant BOULANGER that he would tell his Senator and that his office had the proposed amendment "flagged."

We wonder why Mr. Koonce allegedly helped one of Team Abramoff's clients this way.

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c. On February 14, 2003, Staffer F emailed defendant BOULANGER asking if he could "score some hockey tickets." Defendant BOULANGER forwarded the email to one of Abramoff s assistants noting, "[Staffer F] is a priority," and requesting, "Ice seats if possible." Defendant BOULANGER then responded to Staffer F that Staffer F was getting front row hockey tickets, telling him, "This is without a doubt the most in demand game of the season.... You, my friend, are in debt to me for a while!" Several days later, Staffer F replied, "Thanks [BOULANGER] - You the man. I got something for you too...."

Judging from this passage, it looks like Mr. Koonce pays his debts in a timely manner.

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d. On April 1, 2003, defendant BOULANGER emailed one of Abramoff's assistants, asking if he could get two baseball tickets to an upcoming Redsox/Orioles baseball game for Staffer F, along with a parking pass, noting. "[Staffer F] is important." On April 2, 2003, Staffer F emailed defendant BOULANGER, "thanks for thinking of me for the sox. Let me know if I can return the favor..."

Just how did Mr. Koonce intend to "return the favor"?

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On October 23, 2003, defendant BOULANGER emailed Abramoff that a potential client wanted to retain him to help with favorable action from the Senator for whom Staffer F worked. Defendant BOULANGER wrote, "easy money. [Staffer F] practically lives in our various suites. We are shady."

OK. So this one doesn't allege any acts by Mr. Koonce. But it certainly shows how Mr. Boulanger thought of Mr. Koonce.

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Let's wrap up with this quote from Ms. Yachnin's article:

Koonce also accused the Justice Department of targeting him for prosecution as a “trophy,” noting that in January 2009 his former boss, Gregg, was preparing for his confirmation as secretary of Commerce, which he subsequently declined for unrelated reasons.

First, the DoJ declined to prosecute Mr. Koonce precisely because he wasn't a trophy. As we've opined many times before, we here at the ACR Blog never understood why the DoJ gave Mr. Koonce as much attention as they did since Mr. Koonce was likely not in a position to help the DoJ build cases against bigger fish.

Mr. Koonce is also off base when he connects his fate to his former boss's nomination to be Secretary of Commerce. On the very day that the AP identified Mr. Koonce as Staffer F, the ACR Blog discouraged its readers from drawing the inference that Sen. Gregg was implicated in this matter. In the broader scandal context, it seems most likely that the DoJ began to look at Mr. Koonce as a result of the plea agreements of James Hirni (November 21, 2008) and Todd Boulanger (January 15, 2009). Both of these events occurred before the first reports that President Obama was considering Sen. Gregg for Secretary of Commerce (January 29, 2009).

Since we believe that Mr. Koonce's complaint is without merit, we don't expect it to be newsworthy in the future. And if this is the last time we mention Kevin Koonce, it'll be just fine by us. Mr. Koonce says he's been "waiting for this to go away". If only he would just let it go away.

January 7, 2010: John Albaugh Status

U.S. District Judge Ellen S. Huvelle has scheduled a status conference for Thursday in U.S. v. John Albaugh. Of course, this isn't the first time a status conference has been scheduled in this case. In the past, though, the status conference has been deferred. Judging from a document filed by Mr. Albaugh's attorney last week, Thursday's status hearing will not be deferred. Jeffrey Jacobovitz, Mr. Albaugh's attorney, indicated to Judge Huvelle that he was prepared to attend the status hearing.

Back in the summer, the Justice Department anticipated setting a sentencing date for Mr. Albaugh by the end of 2009. Since then, Judge Huvelle has strongly urged the DoJ to sentence defendants in the greater Jack Abramoff scandal. Don't be surprised if we emerge from Thursday's status conference with a sentencing date for Mr. Albaugh.