A judge denied a motion to dismiss the heart of the government’s corruption case against former Abramoff-associate Kevin Ring Thursday, clearing the way for prosecutors to proceed to a second trial.

Kevin Ring (Getty Images)

In a motion filed last month, Ring had argued new restrictions imposed on prosecutors’ use of the honest services fraud statute made their case untenable. But U.S. District Judge Ellen Segal Huvelle of the District of Columbia disagreed with a whole-sale dismissal.

“This case is filled with challenges,” Huvelle said before delivering her ruling. “We have excellent lawyers who don’t agree on anything.”

In her ruling, Huvelle acknowledged the narrowed scope of honest services fraud imposed by the Supreme Court last month. However, she pointed to the court’s silence on material representation — or intent to deceive the public — which she said could be expanded to include Ring’s alleged actions.

She also rejected the defense’s argument that prosecutors must prove direct quid-pro-quo exchanges — the new criteria for honest services fraud. Instead, she allowed prosecutors to present evidence that could “infer” a quid-pro-quo exchange.

Ring was charged last September as part of a probe that has led to the conviction of 18 lobbyists and public officials. Ring is one of only two defendants fighting the charges. Ring’s trial ended in a hung jury last fall.

The case against Ring focused on the gray area between legitimate lobbying activities and the quid-pro-quo actions criminalized by anti-bribery law. A jury must now thread that needle to determine whether the former lobbyist crossed the line by allegedly offering free event tickets and meals to 11 public officials in exchange for “official actions” spanning January 2000 to October 2004.

“We are not on a clean slate here; this is very complicated,” Huvelle said. “This is going to be a very hard case for the jury.”

The court’s ruing last month in Skilling v. United States limited prosecutors’ use of the honest services law to strict cases of bribery and kickbacks. In the past, prosecutors took a more expansive view of the law, with some alleging they used the statute as a “catch-all” tool to prosecute white collar crime.

With the more restrictive criteria, prosecutors must prove Ring and the public officials he interacted with violated their “lawful duty” to the public — a term Huvelle and both counsels struggled to define.

“Nobody can articulate — including us — what someone has pled to in an honest services [charge],” Huvelle said. “I can’t even define for myself what a ‘lawful duty’ is … how am I supposed to define it for the jury?”

“It isn’t getting any easier thanks to Skilling,” she added.

Huvelle expressed concern over the law’s ambiguous scope in determining whether Ring and public officials had proper prior notice to understand they might be breaking the law.

She refused to include the sharing of information related to one’s public office as a violation of lawful duty, but said she would allow more concrete violations of duty relating to statutory obligations and an office’s settled practice — “those [duties] within your job description.”

“I am not going out on a theory where ‘lawfully duty’ is not tied to something legal,” she said. “[Not] the mere fact that you’re doing something sleazy.”

Instead of pursuing honest services fraud in itself, prosecutors signaled their intent to prove Ring led a scheme to defraud, predicated on the solicitation of gifts by public officials.

Nathaniel Edmonds, a trial attorney in the DOJ Criminal Divison’s Fraud Section, argued that while the failure to disclose gifts may not have violated public disclosure requirements, they did violate internal Justice Department ethics policy. He said that an unnamed official within the Justice Department would testify that Robert Coughlin, former Deputy Chief of Staff in the Justice Department’s Criminal Division, violated department policy.

Judge Huvelle accepted Edmonds’ assertion but pressured him to prove “clear-cut” violations of rules during trial.

Prosecutors will present a list of exhibits and witnesses for the trial Aug. 20, and Ring’s defense is scheduled to make objections Sept. 2.

This post has been updated since it was first posted.

Kevin Ring (Getty Images)

When a federal judge declared a mistrial in the government’s case against Kevin Ring last month, some asked, “What went wrong?”

We caught up with two of the jurors this week for some insight. Lucky us, one voted to convict (on all but one count) and the other to acquit.

First, a bit of background: The Justice Department has drawn 17 guilty pleas in the Jack Abramoff influence-peddling probe, but prosecutors have suffered setbacks in the two cases in which defendants have opted for trial.

Ring is charged with conspiracy, handing out illegal gratuities and scheming to deprive taxpayers of the honest services of members of the executive and legislative branches. After nearly eight days of deliberation, the jury in Ring’s trial hung on all eight counts.

Prosecutors have said they intend have another go at it. Judge Ellen Segal Huvelle, of the U.S. District Court for the District of Columbia, scheduled trial for June 21, after the Supreme Court hears arguments in three cases exploring the reach of the “honest services” law, with which Ring is charged.

Ring’s lawyers say he was a skilled lobbyist who used legal — if at times unseemly — methods to advance his clients’ interests. Prosecutors say he lavished public officials with meals and tickets to concerts and sporting events in return for helping Ring’s clients.

Our first juror — hereafter, Juror No. 1 — is 50 years old and a retired member of the Air Force. On Wednesday, he discussed his experience with us on the condition that he not be named.

JUROR No. 1

Main Justice: Let’s start with an outline of the deliberations.

Juror No. 1: We went through each count without a unanimous decision. Then we tried to do what we thought was the easiest one, which was count eight. [On the sixth day of deliberations, the jury informed Huvelle it had reached a verdict on this count, which involves a payment of $5,000 to a credit union account controlled by the wife of former Rep. John Doolittle (R-Calif.). The jurors voted to acquit but later split.] We reached a tentative verdict, but as we talked more and we better understood our own thoughts, some people just changed their minds on how they voted.

MJ: What was the vote on count eight?

Juror No. 1: It was really close. I think it was five [convict], six [acquit] and one [undecided].

MJ: And the other seven?

Juror No. 1: The rest, I believe, were eight [convict] and four [acquit]. [Click here for a copy of the indictment.]

MJ: How did you vote?

Juror No. 1: I voted not guilty on all counts.

MJ: Were the disagreements specific to each count or was there some common theme?

Juror No. 1: Everything required us to judge what he was thinking. We had to determine his state of mind, and that was a common thread through all the charges. That’s where we got hung up. That, in my mind, is almost an impossible task.

MJ: The government relied heavily on emails, many of which portrayed Ring and his colleagues gloating about lobbying victories and talking about handing out tickets and meals to public officials. How did his defense get past that?

Juror No. 1: He could have had a lot of intentions, and those emails weren’t enough to spell them out. He could have just been plying them with everything he needed to continue his access and influence, as lobbyists do. If the prosecution could have discriminated betwen lobbying and corrupt lobbying better, then they would have made their case. Even though [the government] had a mountain of evidence, it wasnt helpful in showing us what Kevin Ring was thinking.

MJ: Did you have any preconception of lobbyists? Did you at point before the deliberations have an idea of which way you were leaning?

Juror No. 1: I was really ignorant of the lobbying thing. I wasn’t able to prejudge. I was just like a sponge. And even when the trial and closing arguments were over, I didn’t know how I would decide until we actually had a conversation and looked at the counts.

MJ: Judge Huvelle kept saying you were one of the best juries she’s seen. What was the climate like in the jury room? Were you guys at each others’ throats?

Juror No. 1: No. This was a really intelligent group and they were great to work with. We ended up being a hung jury because we had irreconcilable differences, but everyone was respectful. We had an outstanding foreman. [The foreman, by the way, had some lobbying experience.]

MJ: Thank you, sir.

Juror No. 1: Glad to help.

JUROR No. 2

The second juror, Joy Stevenson, is an administrative assistant at Job Corps. We talked with her on Thursday.

Main Justice: Can you give me a sense of the divisions among the jury?

Stevenson: It was really heated at points. One gentleman, an attorney, he got up and he paced the floor and he was adamant that we could not prove Mr. Ring was guilty beyond a reasonable doubt. He and three or four others. There was an older lady…who just couldn’t see herself taking people out to dinner or to a game to influence them and so she couldn’t see Mr. Ring doing it. Overall, we formed relationships. We became friends. But some people took it personally.

MJ: How so?

Stevenson: It got to the point that [some of the jurors who favored acquittal] would fold their hands or read the paper. They would have side conversations while we were trying to deliberate. They weren’t even trying to change their minds.

MJ: What convinced you Ring was guilty?

Stevenson: The email traffic. You had Ring and the guys he worked with talking about how they they did this and that, how they loved the look in [a public official's] eyes when they knew they had them. They were very shrewd. They were very careful, and a lot of things they didn’t say. Their plan was very strategic, and that’s why they were so successful….It was very interesting to me how our laws and decisions are made based on power and money. If you’re speaking to the right person and you have the money, they you can influence them. They’re swayed. And I saw that. It was really something.

MJ: But it’s tough trying to get into someone’s mind, to prove intent.

Stevenson: It was kind of frustrating at times because we couldn’t find anything specifically to say, “Ring did this, or he did that,” based on the emails. And Judge Huvelle told us that there was no restriction on giving at the time. You had [Greenberg Traurig's] rules…but, legally, it felt like there was nothing we could use. It was like we were up against a brick wall.

MJ: Before the trial, did you have any preconceptions about lobbyists?

Stevenson: Not really, no. Going into that trial, for me, was like a refresher course [on civics]. It was great. I learned a whole lot.

MJ: Talk about the government’s case. How did the prosecutors do?

Stevenson: I think the government, I think those guys were great. I was very impressed with all of them….But I was looking for them to pull it all together at the end. You know, bam! There was no clincher.

MJ: Thanks, Ms. Stevenson.

Stevenson: Thank you.

A note about the jury list: Huvelle ask jurors to contact her if they wished to have their names release to the news media. Three jurors gave their consent. The others remain anonymous.

David Ayres, chief of staff to then-Attorney General John Ashcroft, can invoke his Fifth amendment right against self-incrimination to avoid testifying in the trial of Kevin Ring, a federal judge ruled Thursday.

David Ayres (Ashcroft Group)

Ayres, who is now CEO of Ashcroft’s consulting firm, appeared in federal court in Washington with his wife, Laura Ayres, to take the Fifth in the presence of U.S. District Judge Ellen Segal Huvelle.

David Ayres was on the stand for about five minutes, during which he declined to answer several questions related to a $16.3 million grant the Justice Department awarded to one of Ring’s tribal clients in 2002 and college basketball tickets he received from the lobbyist. Laura Ayres’s appearance was even briefer. She was asked one question about Wizards tickets Ring gave her in 2003.

Ring, a former associate of imprisoned lobbyist Jack Abramoff, sought to put them on the stand to disprove the government’s allegations that Ring intended to cultivate Ayres with the tickets in return for future favors. Ring is charged with 10 felony counts for allegedly plying public officials with meals and tickets to sporting events and concerts in exchange for helping his clients.

Ayres is not accused of any wrongdoing, nor is his wife. But the government alleges that in January 2002 Ayres helped Ring secure $16.3 million for one of the lobbyist’s tribal clients, the Mississippi Band of Choctaw Indians, overruling then-Deputy Assistant Attorney General Tracy Henke, who thought the figure too high. The grant was for a new jail.

In March 2002, Ring gave Ayres tickets to the NCAA college basketball tournament at the MCI Center. The Justice Department later waived the competitive bidding requirement on the grant, allowing the Choctaw to pick its contractor of choice. Ring also supplied Laura Ayres with basketball tickets in January 2003. She approached Ring, saying they were a birthday gift for her husband, the government says.

The government has refused to grant the Ayreses immunity; Ring’s lawyer, Miller & Chevalier’s Andrew Wise, argued Huvelle could compel it. But Huvelle said Thursday she doubted she had such power.

“I’m not comfortable saying they don’t have a right to invoke the Fifth Amendment,” she said.

The ruling leaves unanswered the question of who made grant decision, though emails between Ring and his colleagues strongly suggest Ayres had some involvement. Wise said Ayres would have testified that he never pressured Henke, that Ayres and Ring discussed the jail but there was no quid pro quo, and that the two were friends.

Laura Ayres, Wise said, would have testified that Ring made her promise not to reveal the source of tickets because he “didn’t want Ayres to feel uncomfortable” about them coming from a lobbyist.

Huvelle said Wise could call Henke to testify about the Choctaw decision. Henke, who also works for Ashcroft, said in her grand jury testimony that she made the decision. But after a phone call to Ayres in January 2002, Henke emailed her staff, saying her last attempt to keep the grant amount to $9 million had failed.

Ring, now four days into his trial, did not leave the hearing empty-handed. Huvelle struck government exhibits referring to the birthday tickets and said she would instruct the jury not to speculate about the nature of two discussions between Ring and Ayres.