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.
[...] with the many difficult legal issues prompted by the government’s decision to seek a retrial. As reported by Main Justice, Judge Huvelle said at oral argument: “Nobody can articulate — including us — [...]
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