United States v. Kevin Ring ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 2012 Decided January 25, 2013
No. 11-3100
UNITED STATES OF AMERICA,
APPELLEE
v.
KEVIN A. RING,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00274-1)
Timothy P. O’Toole, appointed by the court, argued the
cause and filed the briefs for appellant.
Paul F. Enzinna, Jonathan Hacker, and Allen Dickerson
were on the brief for amici curiae National Association of
Criminal Defense Lawyers, Inc., et al. in support of appellant.
John-Alex Romano, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Lanny A. Breuer, Assistant Attorney General, and
Nathaniel B. Edmonds, Trial Attorney. Elizabeth Trosman,
Assistant U.S. Attorney, entered an appearance.
2
Before: TATEL, BROWN, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In 2004, a Department of Justice
investigation into Jack Abramoff’s lobbying team unearthed
evidence of corruption so extensive that it ultimately
implicated more than twenty public officials, staffers, and
lobbyists. Appellant Kevin Ring, once a prominent
Washington lobbyist, was one of them. Exposing the dark
underbelly of a profession that has long played an important
role in American politics, this case probes the boundary
between legal lobbying and criminal conduct. Ring was
convicted of honest-services fraud, paying an illegal gratuity,
and conspiracy relating to his provision of meals, tickets, and
other gifts to public officials. On appeal, Ring argues that the
district court’s instructions on the honest-services counts
misstated the law, that the jury lacked sufficient evidence to
find that an “official act” underlay the illegal-gratuity charge,
and that the district court ran afoul of Federal Rule of
Evidence 403 and the First Amendment when it admitted
evidence of his lawful campaign contributions. Although each
of these arguments is weighty, we ultimately affirm Ring’s
conviction.
I.
Lobbying has been integral to the American political
system since its very inception. See 1 Robert C. Byrd, The
Senate 1789–1989: Addresses on the History of the United
States Senate 491–92 (Mary Sharon Hall, ed., 1988). As some
have put it more cynically, “[l]obbyists have besieged the
U.S. government for as long as it has had lobbies.” Peter
Grier, “The Lobbyist Through History: Villainy and Virtue,”
The Christian Science Monitor, Sept. 28, 2009,
3
http://www.csmonitor.com/USA/Politics/2009/0928/the-
lobbyist-through-history-villainy-and-virtue. By 2008, the
year Ring was indicted, corporations, unions, and other
organizations employed more than 14,000 registered
Washington lobbyists and spent more than $3 billion lobbying
Congress and federal agencies. See Lobbying Database,
Center for Responsive Politics,
http://www.opensecrets.org/lobby/index.php (compiling data
from the Senate Office of Public Records).
The interaction between lobbyists and public officials
produces important benefits for our representative form of
government. Lobbyists serve as a line of communication
between citizens and their representatives, safeguard minority
interests, and help ensure that elected officials have the
information necessary to evaluate proposed legislation.
Indeed, Senator Robert Byrd once suggested that Congress
“could not adequately consider [its] workload without them.”
1 Byrd, The Senate 1789–1989, at 508.
In order to more effectively communicate their clients’
policy goals, lobbyists often seek to cultivate personal
relationships with public officials. This involves not only
making campaign contributions, but sometimes also hosting
events or providing gifts of value such as drinks, meals, and
tickets to sporting events and concerts. Such practices have a
long and storied history of use—and misuse. During the very
First Congress, Pennsylvania Senator William Maclay
complained that “New York merchants employed ‘treats,
dinners, attentions’ to delay passage of a tariff bill.” Id. at
492. Sixty years later, lobbyists working to pass a bill that
would benefit munitions magnate Samuel Colt “stage[d]
lavish entertainments for wavering senators.” Id. at 493. Then,
in the 1870s, congressmen came to rely on railroad lobbyists
for free travel. See id. at 494. Indeed, one railroad tycoon
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complained that he was “averag[ing] six letters per day from
Senators and Members of Congress asking for passes over the
road.” Id.
The ubiquity of these practices perhaps explains why in
Steven Spielberg’s film Lincoln a lobbyist declared, “It is not
illegal to bribe congressmen—they’d starve otherwise.”
Although public officials certainly benefit from lobbyists’
campaign contributions and other gifts, that quip, of course, is
not precisely accurate. To be sure, bribing congressmen is
illegal, but gifts given by lobbyists to curry political favor do
not always amount to bribes. At least prior to legislation
enacted in the wake of the Abramoff scandal, see Honest
Leadership and Open Government Act of 2007, Pub. L. No.
110-81, 121 Stat. 735, there was nothing criminal about
giving gifts to an official in an attempt “to build a reservoir of
goodwill that might ultimately affect one or more of a
multitude of unspecified acts, now and in the future.” United
States v. Sun-Diamond Growers of California, 526 U.S. 398,
405 (1999). The line between legal lobbying and criminal
conduct is crossed, however, when a gift possesses a
particular link to official acts. See id. at 405–08 (“link” or
“connection” between gift and official act distinguishes
lawful from unlawful gifts). Specifically, when the gift is
given with an “intent ‘to influence’ an official act” by way of
a corrupt exchange—i.e., a quid pro quo—a defendant has
committed bribery or honest-services fraud. See id. at 404(quoting 18 U.S.C. § 201(b)(1)). When a gift is intended as a
“reward” for a specific past or future official act, a defendant
has paid an illegal gratuity. See id. at 405; 18 U.S.C.
§ 201(c)(1)(A). The distinction between legal lobbying and
criminal conduct may be subtle, but, as this case
demonstrates, it spells the difference between honest politics
and criminal corruption.
5
Appellant Kevin Ring, after stints working for a member
of the U.S. House of Representatives, a U.S. Senate
committee, and the House Republican caucus, joined Jack
Abramoff’s lobbying team in 1999. Until its fall from grace,
Abramoff’s group maintained a successful and wide-ranging
lobbying practice in Washington, D.C. Playing a role some
characterized as the team’s “chief operating officer,” Ring
managed some of Abramoff’s most important clients and
maintained close relationships with several public officials.
Ring and the other Abramoff lobbyists relied heavily on
campaign contributions to maintain relationships with elected
officials and promote their clients’ political interests. But it
was Ring’s other lobbying tactics that got him in trouble.
These tactics chiefly included treating congressional and
executive branch officials to dinners, drinks, travel, concerts,
and sporting events. Ring referred to officials with whom he
had the closest ties and with whom his lobbying efforts were
most successful as his “champions.” As regular beneficiaries
of Ring’s largesse, these “champions” often took actions that
were favorable to Ring’s clients.
In 2004, a targeted federal investigation of a kickback
scheme masterminded by Abramoff and another of his
associates, Michael Scanlon, spawned the broader
investigation that ultimately ensnared Ring. Discovering that
meals, tickets, and travel Ring provided to public officials
were impermissibly linked to official acts that benefitted Ring
and his clients, the government indicted him on six counts of
honest-services fraud, one count of paying an illegal gratuity,
and one count of conspiracy to pay illegal gratuities and
commit honest-services fraud. After his first trial resulted in a
hung jury, the district court postponed retrial to await the
Supreme Court’s decision in Skilling v. United States, 130 S.
Ct. 2896 (2010), its landmark honest-services case. Then,
6
following a two-week trial, a jury convicted Ring on three of
the six honest-services counts, the illegal gratuity count, and
the conspiracy count. Ring was sentenced to twenty months’
incarceration, but the district court, observing that his case
“presented challenging and novel questions of law,” stayed
that sentence pending appeal.
Ring now challenges the district court’s instructions on
the honest-services counts, the sufficiency of the evidence on
the illegal-gratuity count, and the admission of evidence of his
lawful campaign contributions. We consider each argument in
turn.
II.
The honest-services fraud statute, 18 U.S.C. § 1346,
extends the general mail- and wire-fraud statute to include not
only schemes to defraud another of money or property, but
also “scheme[s] or artifice[s] to deprive another of the
intangible right of honest services.” In Skilling, the Supreme
Court adopted a limiting construction of the statute in order to
save it from unconstitutional vagueness. Specifically, the
Court held that the honest-services fraud statute “covers only
bribery and kickback schemes.” 130 S. Ct. at 2907. Consistent
with Skilling, the government prosecuted Ring on a bribery
theory of honest-services fraud. As both parties agree, this
means that the government had to prove the major elements of
bribery in order to convict Ring of honest-services fraud. As
relevant to the issue here, the government had to show that
Ring gave gifts with an “intent ‘to influence’ an official act”
by way of a corrupt quid pro quo. See Sun-Diamond, 526 U.S.
at 404 (quoting 18 U.S.C. § 201(b)(1)).
Ring argues that the district court’s instructions on the
quid pro quo element were flawed in three respects.
Specifically, he contends that the instructions failed to make
7
clear (1) that an explicit quid pro quo was required, (2) that
the official must agree to the exchange, and (3) that, at the
very least, a corrupt agreement must be offered. Whether the
district court properly instructed the jury is “a question of law
that we review de novo.” United States v. Orenuga, 430 F.3d
1158, 1166 (D.C. Cir. 2005). In reviewing challenges to
instructions, our task is to “ ‘determine whether, taken as a
whole, [the instructions] accurately state the governing law.’ ”
Id. (quoting United States v. DeFries, 129 F.3d 1293, 1303
(D.C. Cir. 1997) (per curiam)) (alteration in original). After
considering each of Ring’s three challenges—the explicitness
argument, the agreement argument, and the offer argument—
we conclude that the district court’s careful instructions
correctly stated the law of honest-services bribery.
A.
In McCormick v. United States, 500 U.S. 257 (1991), the
case on which Ring primarily relies, the Supreme Court held
that making campaign contributions can constitute criminal
extortion under the Hobbs Act only when made pursuant to an
explicit quid pro quo agreement. See id. at 271–74.
McCormick expressly declined to decide whether this
requirement “exists in other contexts, such as when an elected
official receives gifts, meals, travel expenses, or other items
of value.” Id. at 274 n.10. Ring urges us to resolve the
question McCormick left open and hold that a lobbyist’s
provision of other “things of value” to public officials cannot
constitute honest-services bribery absent an explicit quid pro
quo agreement. Like contributing to political campaigns, Ring
maintains, lobbying implicates core First Amendment
rights—specifically, the right to petition the government.
Criminalizing implicit agreements to exchange things of value
for official acts, he further contends, would result in confused
juries convicting on the basis of constitutionally protected
conduct and chill First Amendment activity.
8
The McCormick Court failed to clarify what it meant by
“explicit,” and subsequent courts have struggled to pin down
the definition of an explicit quid pro quo in various contexts.
See United States v. McGregor, No. 10-cr-186, 2012 WL
3010971 at *4–10 (M.D. Ala. 2012) (collecting cases and
navigating various courts’ pronouncements about the meaning
of “explicit”). It is thus understandable that Ring fails to
explain exactly what the addition of an explicitness
requirement would mean in practice. In any event, we think it
clear that no such instruction is required outside the campaign
contribution context.
As an initial matter, we assume without deciding a
proposition that Ring appears to take for granted: that
McCormick, which concerned extortion, extends to honest-
services fraud. Cf. United States v. Siegelman, 640 F.3d 1159,
1172–74 & n.2 (11th Cir. 2011) (assuming without deciding
that McCormick applies to federal-funds bribery and honest-
services fraud). But even assuming as much, we believe that
campaign contributions can be distinguished from other
things of value. See, e.g., United States v. Ganim, 510 F.3d
134, 142–44 (2d Cir. 2007) (explaining that McCormick
requires “proof of an express promise” in the contribution
context, but that an “agreement may be implied” in “the non-
campaign context”). For one thing, whereas soliciting
campaign contributions may be practically “unavoidable so
long as election campaigns are financed by private . . .
expenditures,” McCormick, 500 U.S. at 272, accepting free
dinners is certainly not. Moreover, although providing
information, commenting on proposed legislation, and other
lobbying activities implicate First Amendment speech and
petition rights, see Liberty Lobby, Inc. v. Pearson, 390 F.2d
489, 491 (D.C. Cir. 1967) (“[E]very person or group
engaged . . . in trying to persuade Congressional action is
9
exercising the First Amendment right of petition.”), the First
Amendment interest in giving hockey tickets to public
officials is, at least compared to the interest in contributing to
political campaigns, de minimis. Accordingly, to the extent
concerns about criminalizing politically necessary activity or
chilling constitutionally protected conduct justify imposing a
higher bar for criminalizing campaign contributions, such
concerns carry significantly less weight with respect to other
things of value.
B.
Having rejected Ring’s argument that an explicit quid pro
quo is required outside the contribution context, we next
address his contention that the district court nonetheless erred
by instructing the jury that “[i]t [was] not necessary for the
government to prove that . . . the public official actually
accepted the thing of value or agreed to perform the official
act or participated in the scheme or artifice to defraud.” That
the official must actually enter into a corrupt agreement, Ring
maintains, flows from the Supreme Court’s admonition that
bribery requires “a quid pro quo—a specific intent to give or
receive something of value in exchange for an official act,”
Sun-Diamond, 526 U.S. at 404–05, from the need to
distinguish bribery from illegal gratuity, and from our
decision in United States v. Dean, 629 F.3d 257 (D.C. Cir.
2011).
Ring’s position is foreclosed by the text and structure of
the federal bribery statute, which both parties agree serves as
the benchmark for honest-services bribery, as well as by
binding precedent. The bribery statute expressly criminalizes
a mere “offer” of something of value with the intent to
influence an official act. 18 U.S.C. § 201(b)(1). That the
official need not accept that offer for the act of bribery to be
complete is evident from the structure of the statute, which
10
defines two separate crimes: the act of offering a bribe and the
act of soliciting or accepting a bribe. See id. § 201(b)(1)–(2).
Confirming this interpretation, the Supreme Court held in
United States v. Brewster, 408 U.S. 501 (1972), that, with
respect to a bribe payee, the “acceptance of the bribe is the
violation of the statute.” Id. at 526. The parallel proposition in
the context of a bribe payor is straightforward: the offer of the
bribe is the violation of the statute. Indeed, we have made
clear that the quid pro quo need not be “fully executed for the
act to be considered a bribe.” Orenuga, 430 F.3d at 1166.
Because bribery does not require the official to agree to
or actually complete a corrupt exchange, neither does honest-
services fraud by bribery. Although we need look no further
than black-letter bribery law to reach this conclusion, the fact
that the wire fraud statute “ ‘punishes the scheme, not its
success,’ ” Pasquantino v. United States, 544 U.S. 349, 371
(2005) (quoting United States v. Pierce, 224 F.3d 158, 166
(2d Cir. 2000)), lends further support to our conclusion that a
defendant may be guilty of honest-services bribery where he
offers an official something of value with a specific intent to
effect a quid pro quo even if that official emphatically refuses
to accept. In other words, though the offerer of a bribe is
guilty of honest-services fraud, his attempted target may be
entirely innocent. See United States v. Anderson, 509 F.2d
312, 332 (D.C. Cir. 1974) (bribe payer’s culpability may
differ from official’s culpability).
Contrary to Ring’s argument, moreover, the proposition
that the official need not agree to accept a proffered bribe
hardly renders bribery, or honest-services fraud by bribery,
indistinguishable from illegal gratuity, which criminalizes
gifts given “for or because of,” 18 U.S.C. § 201(c)—as
opposed to with an intent “to influence,” id. § 201(b)—an
official act. Indeed, the Supreme Court directly answered this
11
objection in United States v. Sun-Diamond Growers of
California, explaining that “[t]he distinguishing feature of
each crime is its intent element,” not any action taken by
another party. 526 U.S. at 404. Specifically:
Bribery requires intent “to influence” an official act
or “to be influenced” in an official act, while illegal
gratuity requires only that the gratuity be given or
accepted “for or because of” an official act. In other
words, for bribery there must be a quid pro quo—a
specific intent to give or receive something of value
in exchange for an official act. An illegal gratuity,
on the other hand, may constitute merely a reward
for some future act that the public official will take
(and may already have determined to take), or for a
past act that he has already taken.
Id. at 404–05 (quoting 18 U.S.C. §§ 201(b)–(c)). Thus, it is
the “specific intent to give or receive something of value in
exchange for an official act,” id. (emphasis omitted), an
element on which the jury in this case was carefully
instructed, that preserves the distinction between bribery and
gratuity.
Nothing in Dean requires a different result. There, we
overturned a conviction for solicitation of a bribe, holding that
bribery “necessitates an agreement between the public official
and the other party that the official will perform an official act
in return for a personal benefit to the official.” 629 F.3d at
259. Leaning heavily on the word “agreement,” Ring
maintains that Dean stands for the proposition that an official
must “agree” to accept a bribe for the requisite quid pro quo
to occur. But in context it is clear that “agreement” is used as
a synonym for specific intent. When, as in Dean, a public
official is charged with soliciting a bribe, the evidence must
12
show that the official conveyed an intent to perform official
acts in exchange for personal benefit. Accordingly, the
element absent in Dean is precisely what is present here: an
intent to offer or solicit an exchange of official action for
personal gain.
C.
Finally, we turn to Ring’s more nuanced argument that
even if an official need not agree to a corrupt exchange, the
payor defendant must at least intend to offer such an
exchange. This argument, with which the government appears
to agree, see Oral Arg. Tr. 25:19–26:11; Appellee Br. 29, was
initially proffered by amici and adopted as a “fallback” by
Ring. See Oral Arg. Tr. 13:5. But we agree with the
government that the district court’s instructions faithfully
capture this requirement. After explaining the quid pro quo
element, the instructions stated that “[t]he defendant must
intend that the public official realize or know that he or she is
expected, as a result of receiving this thing of value, to
exercise particular kinds of influence or decision-making to
benefit the giver as specific opportunities to do so arise. . . .
[T]his quid pro quo,” the instructions continued, “must
include a showing that the things of value either were
conditioned upon the performance of an official act or pattern
of acts or upon the recipient’s express or implied agreement to
act favorably to the donor when necessary.”
These careful instructions touched all the necessary
bases, requiring a specific intent to influence official acts, an
intent that the official “realize or know” that the corrupt
exchange is being proposed, and a showing that the gifts
“were conditioned upon” the official’s act or agreement. They
also comport with instructions approved by other circuits. In
United States v. Uricuoli, 613 F.3d 11 (1st Cir. 2010), for
instance, the First Circuit upheld instructions that required the
13
government to prove that the defendant “intended the
payment to cause [the official] to alter his official acts,” id. at
15, and that “the payments to [the official] were made with
the specific purpose of influencing his actions on official
matters,” id. at 18.
To be sure, the district court focused more on Ring’s
intent than on his conduct. But that focus mirrors the Supreme
Court’s in Sun-Diamond, which defined the quid pro quo
element not in terms of a defendant’s conduct, but rather in
terms of a defendant’s “specific intent to give or receive
something of value in exchange for an official act.” 526 U.S.
at 404–05 (emphasis added and other emphasis omitted). In
the end, it is this mens rea element that distinguishes criminal
corruption from commonplace political and business
activities.
III.
Ring’s next argument takes us from the honest-services
fraud charges to the sole illegal-gratuity count. As we have
already explained, the illegal-gratuity statute makes it
unlawful to “give[ ], offer[ ], or promise[ ] anything of value
to any public official . . . for or because of any official act.”
18 U.S.C. § 201(c). The statute defines “official act” as “any
decision or action on any question, matter, cause, suit,
proceeding or controversy, which may at any time be
pending, or which may by law be brought before any public
official, in such official’s official capacity, or in such
official’s place of trust or profit.” Id. § 201(a)(3). This Circuit
treats the question whether an action constitutes an “official
act” as one of “sufficiency of the evidence.” See Valdes v.
United States, 475 F.3d 1319, 1322 (D.C. Cir. 2007) (en
banc).
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Ring was charged with paying an illegal gratuity when he
gave Washington Wizards tickets to an attorney at the Justice
Department’s Office of Intergovernmental Affairs as a reward
for helping to expedite review of a visa application for a
foreign student seeking to attend a private school owned by
Abramoff. Upon receiving a request for assistance from Ring,
the attorney forwarded Ring’s email to another Justice
Department official who recommended he contact someone at
the U.S. Immigration and Naturalization Service (“INS”).
Following this advice, the attorney called an INS official’s
secretary and urged her to expedite the application. He then
forwarded Ring’s email to the secretary along with a personal
note:
Thank you for looking into this. I do not know if
anything can be done but I said I would look into it.
If, for any reason, nothing can be done, please email
me so I can pass that along. Thank you very much
for you[r] assistance.
The secretary, in turn, passed the email along to five different
INS officials in an effort to, as she testified, “make sure . . .
action was being taken to answer the request” because it had
come from “higher headquarters” at the Department of
Justice. Within a single business day, INS agreed to expedite
the application. After getting the news that the attorney’s
efforts had been successful, Ring sent Abramoff an email
reporting that the attorney had “[h]elped on the school and
[was] now looking for tickets” to two Washington Wizards
basketball games. Abramoff promptly agreed, and the
attorney attended the games on Abramoff’s dime.
By convicting on the illegal-gratuity count, the jury
found—and Ring does not now dispute—that he provided the
tickets “for or because of” the attorney’s assistance with the
15
visa application. Instead, Ring argues that the government
failed to offer sufficient evidence that the attorney took an
“official action” within the meaning of the illegal-gratuity
statute.
In Valdes v. United States, this Court, sitting en banc,
considered the scope of “official act” in the illegal-gratuity
context. There, a police officer accepted money from an
undercover agent and, at the agent’s request, conducted
searches of license-plate and warrant databases. See 475 F.3d
at 1321–22. Emphasizing that the illegal-gratuity statute is
concerned not with purely informational inquiries, but rather
with “inappropriate influence on decisions that the
government actually makes,” id. at 1325, we held that the jury
lacked sufficient evidence to find that the officer’s searches
constituted “official acts,” id. at 1322–25. In so doing, we
listed some examples of acts that “the statute easily covers: a
clerk’s manufacture of official government approval of a
Supplemental Security Income benefit, as in United States v.
Parker, 133 F.3d 322 (5th Cir. 1998); a congressman’s use of
his office to secure Navy contracts for a ship repair firm, as in
United States v. Biaggi, 853 F.2d 89 (2d Cir. 1988); and a
Veterans’ Bureau official’s activity securing a favorable
outcome on a disability claim, as in Beach v. United States, 19
F.2d 739 (8th Cir. 1927) (based on a predecessor statute).”
Valdes, 475 F.3d at 1325. We further noted that “official acts”
include acts that have been established as part of an official’s
position by virtue of past practice or custom. See id. at 1323.
Ring maintains that, like in Valdes, this is a case in which
no reasonable juror could have found that the attorney’s
forwarding of the email constituted an “official act.” Because
the attorney lacked decisionmaking authority with respect to
visa applications, Ring argues that the attorney’s intercession
was not a “decision or action” on a “question, matter, . . . [or]
16
proceeding” that was or ever would be “pending” or
“brought” before him. 18 U.S.C. § 201(a)(3). Instead,
according to Ring, the attorney’s act of forwarding the email
to the INS secretary amounts to nothing more than an
informational inquiry, analogous to the database search in
Valdes or a receptionist’s transfer of a phone call.
Considering the evidence in the light most favorable to
the government, as we must, see Valdes, 475 F.3d at 1322, we
think it clear that a rational jury could have found that the
attorney’s efforts to expedite the visa application qualified as
official action. The secretary who received the attorney’s
email testified that the Justice Department’s
Intergovernmental Affairs Office was part of INS’s “higher
headquarters” and was “responsible for . . . assisting other
agencies and other state and local governments if they ha[d]
an issue.” In other words, unlike attorneys in DOJ units who
litigate on behalf of agency clients, attorneys in the
Intergovernmental Affairs Office are responsible for reaching
across agency boundaries to get things done. And as the
secretary went on to explain, she felt unable to ignore the
attorney’s request because of the office he held. Ultimately,
the attorney’s swift success in procuring expedited review
spoke for itself.
Contrary to Ring’s contention, the attorney’s actions are
categorically different from those Valdes suggests fall outside
the scope of “official action.” Unlike the Valdes police
officer, the attorney was neither “moonlighting” nor making a
purely informational inquiry. See Valdes, 475 F.3d at 1324–
25. Rather, the attorney acted in his official capacity to
influence the visa application process, conduct better
analogized to an action Valdes explained was clearly within
the statute’s coverage: “a congressman’s use of his office to
secure Navy contracts for a ship repair firm.” Id. at 1325. To
17
be sure, the attorney himself lacked independent authority to
expedite visa applications. But Ring’s attempt to import a
requirement that the official in question have ultimate
decisionmaking authority into the definition of “official act”
has no statutory basis. Cf. United States v. Carson, 464 F.2d
424, 433–34 (2d Cir. 1972) (“There is no doubt that federal
bribery statutes have been construed to cover any situation in
which the advice or recommendation of a government
employee would be influential, irrespective of the employee’s
specific authority (or lack of same) to make a binding
decision.”). Indeed, the statute states that “official act[s]”
include both “decision[s]” and “action[s].” 18 U.S.C.
§ 201(a)(3).
IV.
This brings us to Ring’s final contention—that the district
court ran afoul of Federal Rule of Evidence 403 as well as the
First Amendment by permitting the jury to draw adverse
inferences from evidence about his campaign contributions.
Although the government never contended that any of Ring’s
campaign contributions were themselves unlawful, it
repeatedly introduced testimony about those contributions in
order to paint a fuller picture of his interactions with public
officials. It also used Ring’s contributions to demonstrate that
he viewed money as a means to his clients’ political ends. For
example, the government introduced an email in which Ring
asked Abramoff to make sure that a particular congressman
who had acted as “a good soldier” received “his fair share of
contributions.” And one witness testified that Ring had a
“running joke” in which he would hold up a client’s campaign
check and ask, “Hello quid. Where’s the pro quo?” Tr.
10/28/10 PM at 22:2–13.
The district court recognized that this sort of evidence
posed a close question under Federal Rule of Evidence 403,
18
which provides that “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed by
a danger of,” among other things, “unfair prejudice, confusing
the issues, [or] misleading the jury.” Finding on the one hand
that the contributions were “so intertwined and so integrally
part of what [Ring] did” and that contribution evidence helped
shed light on his modus operandi, and on the other that the
evidence was not especially prejudicial, the district court
ultimately admitted it. To avoid confusion and prejudice,
however, the district court repeatedly reminded the jury—
indeed, virtually every time campaign contribution evidence
was presented—that such contributions are legitimate
lobbying tools and that the jury must not consider the
lawfulness of Ring’s contributions in reaching its verdict. See,
e.g., Trial Tr. 10/25/10 AM at 22:7–24:7. Pressing the same
point, the district court’s final jury instructions emphasized
that “the propriety or legality of any campaign contributions
. . . [was] not before [the jury] and [the jury was] therefore
instructed not to consider campaign contributions . . . as part
of the illegal stream of benefits that Mr. Ring [was] charged
with providing to certain public officials.”
Although the district court viewed this question primarily
in Rule 403 terms, Ring’s challenge to the admission of this
evidence intertwines First Amendment– and Rule 403–based
lines of reasoning. To the extent Ring’s First Amendment
argument is distinct, it rests on the proposition that permitting
a jury to draw adverse inferences from constitutionally
protected activity violates a defendant’s First Amendment
rights. Although the First Amendment limits the
government’s authority to criminalize speech and other
protected activity, see, e.g., United States v. Stevens, 130 S.
Ct. 1577 (2010), the Supreme Court has made clear that the
Amendment simply “does not prohibit the evidentiary use of
speech to establish the elements of a crime or to prove motive
19
or intent.” Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993).
Nothing in McCormick—which is silent on the use of
campaign contributions as evidence of other criminal
activity—suggests that contributions are an exception to that
general rule.
Ring is left, then, with Rule 403 and the possibility that
the First Amendment, even if it imposes no independent bar
on the admission of campaign contribution evidence, plays
some role in the Rule 403 analysis. Critical to our resolution
of this issue, we review a trial judge’s application of Rule 403
for “abuse of discretion” because “we assume that the trial
judge generally is in the best position to balance the probative
value of the disputed evidence against the risks of prejudice
and confusion.” Henderson v. George Washington University,
449 F.3d 127, 133 (D.C. Cir. 2006). Although a trial court’s
discretion to admit evidence under Rule 403 is not
“unfettered,” appellate courts must be “extremely wary of
second-guessing the legitimate balancing of interests
undertaken by the trial judge.” Id.Beginning with the plus side of the Rule 403 balance
sheet, we agree with the district court that the campaign-
contribution evidence had significant probative value.
Testimony about Ring’s lawful campaign contributions gave
jurors a window into the way in which lobbyists like Ring
gain influence with public officials. One witness explained
the role of campaign contributions in Abramoff’s lobbying
practices with a particularly striking metaphor:
Q: Did you ever lobby with campaign
contributions?
A: Yes.
20
Q: How did you do that?
A: Campaign contributions are a little bit different
than, for lack of a better term, things of value. I
viewed campaign contributions as sort of the ante in
a poker game. It’s the price of being involved in the
game. We worked—we worked aggressively to
raise money and we liked to do it.
Q: What do you mean by that, you viewed
campaign contributions as the ante in a poker game?
A: Yeah, it’s a seat at the table. That’s all. That’s all
it is.
Trial Tr. 10/28/10 PM 21:9–20. In other words, under the
government’s theory of the case, campaign contributions gave
the lobbyists access to public officials. Without such
evidence, a jury might wonder why an official would sacrifice
his integrity for a few Wizards tickets. Perhaps even more
significantly, the contribution testimony amounted to strong
modus operandi evidence that demonstrated Ring’s
transactional relationship with officials and the manner in
which he pursued his clients’ political aims. That Ring
rewarded “good soldier[s]” with campaign contributions, for
example, perhaps suggests that he put other things of value to
similar use.
Turning to the other side of the Rule 403 ledger, we think
it similarly clear that the contribution evidence had a strong
tendency to prejudice, confuse, and mislead the jury. As the
Supreme Court explained in Old Chief v. United States, 519
U.S. 172 (1997), “[t]he term ‘unfair prejudice’ . . . speaks to
the capacity of some concededly relevant evidence to lure the
factfinder into declaring guilt on a ground different from
21
proof specific to the offense charged.” Id. at 180. The
Committee Notes to Rule 403 explain, “ ‘[u]nfair prejudice’
within its context means an undue tendency to suggest
decision on an improper basis, commonly, though not
necessarily, an emotional one.” Advisory Committee’s Note,
Fed. Rule Evid. 403. Here, the government introduced the
jury to a group of lobbyists who “viewed campaign
contributions as . . . the ante in a poker game,” Trial Tr.
10/28/10 PM 21:13–14, and to a defendant who held
“$300,000 in checks” in his hand and joked, “Hello, quid.
Where’s the pro quo?” Id. at 22:6–24. The distasteful way in
which Ring spoke of campaign contributions—especially in
light of the heated national debate about the proper role of
money in politics—posed a significant risk of evoking
precisely the kind of negative emotional response that might
“lure the [jury] into declaring guilt on a ground different from
proof specific to the offense charged.” Old Chief, 519 U.S. at
180.
The evidence may have been even more confusing and
misleading than it was prejudicial. Asked to find whether
Ring engaged in a corrupt “quid pro quo” with respect to
meals and tickets, the jury was presented with testimony—
e.g., “Hello, quid. Where’s the pro quo?” Trial Tr. 10/28/10
PM 22:2–25—that Ring viewed contributions in precisely
those terms. Indeed, through its questioning the government
invited the jury to conflate the contribution evidence with
evidence about the things of value that were actually at issue.
After eliciting testimony about contributions, for example, the
prosecution asked this series of questions:
Q: In that conversation or at any other time, did
Kevin Ring tell you that he treated campaign
contributions any differently than he did the giving
of tickets to public officials?
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...
A: I don’t remember a conversation like that.
Q: What about campaign contributions and meals or
food, giving of meals or food to public officials?
...
Q: I’m asking whether or not Mr. Ring ever had any
conversations that he treated campaign
contributions differently than he treated the giving
of meals and tickets to public officials?
A: I don’t remember any conversations like that, no,
sir.
Q: What about the treatment of the giving of trips to
public officials?
A: Again, I don’t remember any conversations like
that.
Trial Tr. 10/27/2010 AM at 127:2–128:3.
Having laid out both sides of the Rule 403 balance sheet,
we come to the question whether the contributions’ status as
protected speech affects the analysis. For his part, Ring fails
to specify exactly what role constitutional considerations
should play and neglects to grapple with the consequences
and limitations of his position. But the strongest version of his
argument, we think, is that concerns about jury prejudice and
confusion should carry more weight in the context of core
First Amendment activity. Although there appears to be little
23
support for such a holding, injecting the First Amendment
into the Rule 403 balance in this way would resonate with
First Amendment–specific “chilling” concerns—concerns that
are especially powerful where political speech is involved.
See, e.g., Brown v. Hartlage, 456 U.S. 45, 61 (1982). In this
case, however, we need not decide whether and precisely how
the First Amendment alters the Rule 403 analysis because,
even assuming First Amendment concerns justify placing a
thumb on the prejudice and confusion side of the scale, that
added weight fails to change the outcome of the balance.
Although Ring’s argument for excluding the evidence is
powerful, we are mindful that the question at this stage is not
whether we would have come to the same conclusion as the
district court in the first instance, but whether the district
court abused its discretion. In answering that question, we
think it significant that the district court repeatedly instructed
the jury that the campaign contributions were not illegal.
Although “curative instructions are no panacea,” Dallago v.
United States, 427 F.2d 546, 552 n.13 (D.C. Cir. 1969), the
fact that the instruction was repeated every time contribution
evidence arose—as opposed to being given only a single time
at the end of a trial throughout which jurors may have failed
to distinguish contribution evidence from other evidence—did
much to mitigate the potential for confusion and First
Amendment chilling, even if it could not have entirely
eliminated the potential for prejudice. Moreover, the
probative value of the contribution evidence and the extent to
which it was inexorably intertwined with other evidence
weighed heavily in favor of admission. In the end, we cannot
say that the district court abused its discretion by concluding
that the evidence’s probative value was not “substantially
outweighed” by its prejudicial tendencies. Fed. R. Evid. 403.
After all, Rule 403 “tilts . . . toward the admission of evidence
24
in close cases,” United States v. Moore, 732 F.2d 983, 989
(D.C. Cir. 1984), and this case is nothing if not close.
V.
For the foregoing reasons, we affirm.
So ordered.