The government’s corruption case against former Jack Abramoff-associate Kevin Ring is doomed in light of new restrictions on prosecutors’ use of the honest services fraud statute, attorneys for the ex-lobbyist said in a motion to dismiss filed in D.C. federal court Monday.
The filing pushed for acquittal on eight honest-services counts based on the “common-place nature” of the lobbyist’s actions and insufficient evidence to prove honest service fraud after a June Supreme Court decision limited the law’s scope.
In Skilling v. United States, the court ruled that prosecutors can only use the honest services law for 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.
“Skilling’s effect on this prosecution is clear: The days in which the honest services fraud statute could be contorted to reach ‘bribery-esque,’ ‘bribery-lite’ or any other arguable dishonest conduct are now over,” wrote defense counsel Andrew Wise and Timothy O’Toole of Miller & Chevalier.
A former associate of disgraced lobbyist Jack Abramoff, 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.
The government alleges he provided public officials with free event tickets and meals in exchange for “official actions” that spanned January 2000 to October 2004 and involved 11 public officials.
In its first case against Ring, the government brought 10 charges, six of which alleged violations of the honest services statute and a seventh for conspiracy to commit honest services fraud. The trial ended in a hung jury last fall.
The motion, filed this week at the request of U.S. District Judge Ellen Segal Huvelle of the District of Columbia, sought to rebuff the government’s allegations by calling into question prosecutors’ ability to prove honest services fraud under the now-limited criteria. Huvelle will hear arguments on the motion August 5.
Depending on that hearing’s outcome, the Justice Department may need to decide whether to pursue a second trial that includes honest services fraud. Should prosecutors decide to drop those charges — or if they are found unsupported by Huvelle — the Justice Department could still proceed with the case on charges of illegal gratuity.
In the Ring case, prosecutors must prove material misrepresentation — or intent to deceive the public — and clear bribery of public officials if they wish to continue on honest services fraud.
But according to the defense, Ring’s position as a private-sector lobbyist precludes any duty to disclose his activities to the public. In fact, they say Ring’s gift-giving represents the norm for lobbyists in Washington and took place in “plain public view.”
“Any interested member of the public would have already known that the officials were interacting with Mr. Ring at these events,” they said in the filing. “While many people might find this traditional practice distasteful, there was nothing deceptive or fraudulent about this conduct; it is how lobbying has been practiced for many years, and nothing presented at trial showed otherwise.”
The lawyers also said evidence presented in the first trial fails to show direct quid-pro-quo bribery — the standard now required for honest services fraud.
“The government spent the first trial disclaiming any obligation to prove bribery … but the Supreme Court has now made clear … that the government’s honest services fraud must include evidence of, among other things, bribery,” they wrote. “Mr. Ring’s [first] trial ignored the need to prove a promise or agreement by the public official, instead focusing on unilateral conduct — gifts of meals and tickets — that has long been viewed as part of traditional lobbying.”
The full motion is embedded below.
Kevin Ring: Revised Motion to Dismiss
[...] Court’s narrowing of the statute, his defense attorneys claim he cannot be convicted and should not face retrial, reports the Main Justice [...]