United States v. Ring

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 08-274 (ESH)
)
KEVIN A. RING, )
)
Defendant. )
)
MEMORANDUM OPINION
On September 5, 2008, a federal grand jury indicted Kevin Ring for acts relating to his
lobbying work with Jack Abramoff. A jury trial on Counts I through VIII began on September 8,
2009 that ultimately resulted in a hung jury on all counts. Because seven of the eight counts
involved violations of the honest-services wire fraud statute, 18 U.S.C. § 1346, the Court
continued the retrial pending a decision from the Supreme Court in Skilling v. United States, 130
S. Ct. 2896 (2010), which was handed down on June 24, 2010.
The second trial commenced on October 18, 2010. Ring was charged with payment of an
illegal gratuity (Count II), honest services wire fraud (Counts III, IV, V, VI, VII, and VIII), and
conspiracy to pay illegal gratuities and to commit honest services wire fraud (Count I).
Following a two-week jury trial and four days of deliberation, the jury returned a verdict of
guilty on Counts I, II, III, VII, and VIII and a verdict of not guilty on counts IV, V, and VI.
Ring now moves pursuant to Federal Rule of Criminal Procedure 29(c) for a judgment
notwithstanding the jury’s guilty verdicts on Counts I, II, III, VII & VIII. In the alternative,
defendant moves pursuant to Rule 33 for a new trial. Having heard argument on these motions
on March 1, 2011 and having considered the entire record herein, the Court will deny both
motions.
ANALYSIS
I. MOTION FOR JUDGMENT OF ACQUITTAL
A. Rule 29
Fed. R. Crim. P. 29(c) provides that “[i]f the jury has returned a guilty verdict, the court
may set aside the verdict and enter an acquittal.” In reviewing a post-verdict motion for
judgment of acquittal under Rule 29, a court “must view the evidence in the light most favorable
to the verdict.” United States v. Campbell, 702 F.2d 262, 264 (D.C. Cir. 1983). Such a motion
for judgment of acquittal should be denied when the evidence is “sufficient to permit a rational
trier of fact to find all the essential elements of the crime beyond a reasonable doubt.” United
States v. Cook, 526 F. Supp. 2d 10, 18 (D.D.C. 2007), aff’d, 2009 U.S. App. LEXIS 8384 (D.C.
Cir., Apr. 21, 2009) (quoting United States v. Kayode, 254 F.3d 204, 212 (D.C. Cir. 2001)).
Typically, the jury’s determination will stand unless no reasonable juror could have found a
defendant guilty beyond a reasonable doubt. Cook, 526 F. Supp. 2d at 18.
B. Honest Services Fraud Does Not Require Evidence of an Explicit Quid Pro
Ring argues that the Court must apply the Supreme Court’s decision in McCormick v.
United States, 500 U.S. 257 (1991), to this case, thereby requiring the government to prove an
explicit quid pro quo agreement in order to prove honest-services fraud. (Defendant’s Motion
for Judgment of Acquittal [“MJOA”] at 7-12.) In McCormick, the Supreme Court held that
campaign contributions enjoyed protection under the First Amendment, and therefore could not
service as the basis for a criminal conviction without proof of an explicit quid pro quo.
McCormick, 500 U.S. at 273. The Court, however, explicitly did “not decide whether a quid pro
quo 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 argues that McCormick should
apply not only to campaign contributions, but also to cases where evidence of illegal activity was
2
“inextricably intertwined with abundant legal lobbying activity.” (MJOA at 9.) Defendant
therefore contends that “an explicit quid pro quo standard should have applied even if all
evidence of campaign contributions had properly been excluded.” (Id.) Otherwise, defendant
cautions, “the absence of a bright, concrete line between legal and illegal [conduct] . . . would
make it too easy for jurors to criminalize constitutionally-protected conduct.” (Id. at 10.)
As it held prior to the retrial here (see Aug. 5, 2010 Tr. at 82), the Court declines
defendant’s invitation to extend McCormick beyond campaign contributions. Such a remedy is
neither required by supposed danger of jury confusion nor supported by case law.
The Court provided the jury with repeated McCormick instructions throughout the trial to
ensure that defendant was not being held criminally responsible for activity protected by the First
Amendment. Each time that evidence or testimony touched on a campaign fundraiser or
campaign contribution, the Court instructed the jury as follows:
Campaign contributions and fundraising are an important,
unavoidable and completely legitimate part of the American
system of privately-financed elections. The law recognizes that
virtually every campaign contribution is given to an elected public
official because the given supports the acts done or to be done by
the elected official.
The Supreme Court of the United States has recognized that
legitimate honest campaign contributions are given to reward
public officials with whom the donor agrees, and in the generalized
hope that the official will continue to take similar official actions
in the future.
Lobbyists often donate to the political campaigns of public
officials and there is nothing illegal about this practice. Official
acts that advance the interest of a lobbyist’s clients, taken shortly
before or after campaign contributions are solicited or received
from the lobbyist, can, depending on the circumstances, be
perfectly legal and appropriate.
In this case, the propriety or legality of campaign contributions or
fundraisers is not before you, and you are, therefore, instructed not
to consider campaign contributions or fundraisers as part of the
3
illegal stream of benefits that Mr. Ring is charged with providing
to certain public officials.
(See, e.g., Oct. 25, 2010, A.M. Tr. at 22-23:7-9; Nov. 3, 2010 P.M. Tr. at 34-35.) Indeed, the
Court repeatedly, and over the government’s strenuous objection, informed the jury that they
could not consider campaign contributions as part of the illicit stream of value in this case under
any circumstances whatsoever. (See, e.g., Oct. 26, 2010 A.M. Tr. at 15:13-16; Nov. 3, 2010
A.M. Tr. at 59:19-20.) These instructions were also incorporated into various jury instructions as
well. (See Dkt. No. 222 at 28-30 [Jury Instruction Nos. 27-29].) In sum, although the Court
allowed the jury to hear evidence of campaign contributions, the jury was repeatedly instructed
that it could not consider such evidence as part of the illicit stream of value – and the Court
presumes, as it must, that the jurors followed the instructions they were given. See United States
v. Mouling, 557 F.3d 658, 665 (D.C. Cir. 2009) (citing Richardson v. Marsh, 481 U.S. 200, 211
(1987)).
Moreover, numerous circuits have held that McCormick’s explicit quid pro quo
requirement does not extend to things of value other than campaign contributions. See United
States v. Kincaid-Chauncey, 556 F.3d 923, 937 (9th Cir. Nev. 2009); United States v. Whitfield,
590 F.3d 325, 352-53 (5th Cir. 2009) 1; United States v. Ganim, 510 F.3d 134, 146-47 (2d Cir.
2007); United States v. Kemp, 500 F.3d 257, 281 (3d Cir. 2007). And while the Supreme Court
recently held in Skilling v. United States, 130 S. Ct. 2896 (2010), that 18 U.S.C. § 1346criminalizes only schemes to defraud involving bribery or kickbacks, it did not expand the scope
1
Ring suggests that Whitfield “assume[d], for the sake of argument, that an instruction on
McCormick’s quid pro quo requirement was required in connection with an honest-services
bribery charge.” (Defendant’s Reply in Support of Motion for Judgment of Acquittal [“MJOA
Reply”] at 5.) A closer examination of Whitfield, however, reveals that the Fifth Circuit was
merely agreeing with the Third and Ninth Circuits’ conclusion that while a quid pro quo is
required, “a particular act need not be identified at the time of payment.” 590 F.3d at 352-53
(citing Kemp and Kincaid-Chauncey).
4
of McCormick, as Ring now urges this Court to do, nor is there any basis to conflate the
requirements of McCormick and Skilling, as Ring has done. See United States v. Urciuoli, 613
F.3d 11, 13, 15 n.3 (1st Cir. 2010) (citing holding in Kincaid-Chauncey that quid pro quo bribe
need not be evidenced by any express agreement or statements of intent).
For these reasons, this Court has previously rejected Ring’s previous arguments in favor
of expanding the scope of McCormick to extend to things of value other than campaign
contributions. See Aug. 5, 2010, P.M. Tr. at 82:9-14 (“I think there’s ample authority that the
quid pro quo bribery can be inferred from the evidence. You don’t need a specific explicit
agreement.”); id. at 30:21-32:6 (“The First Amendment allows you to make campaign
contributions and protects that, and so they require explicit quid pro quo. . . . I don’t see how that
carries to some kind of First Amendment protection for . . . showering people with tickets to the
[W]izards. . . . Kincaid and Kemp and the First Circuit in [Urciuoli] . . . all say you don’t need an
explicit agreement.”). 2
C. Implicit Quid Pro Quo / Sufficiency of the Evidence
Defendant raises a number of arguments in an attempt to attack the sufficiency of the
government’s evidence of an implicit quid pro quo. As a general matter, Ring’s attack on the
sufficiency of the evidence is a selective, one-sided attack on particular pieces of evidence, and
as such does not faithfully hew to Rule 29, which requires the Court to consider all of the
evidence in the light most favorable to the verdict.
2
United States v. Collins, 78 F.3d 1021, 1034 (6th Cir. 1996); United States v. Hairston, 46 F.3d
361 (4th Cir. 1995); and United States v. Martinez, 14 F.3d 543, 552 (11th Cir. 1994) are not to
the contrary. These cases predate Kemp, Ganim, Whitfield, and Kincaid-Chauncey, and
generally deal with the distinction between quid pro quo and the exchange of things of value for
mere “influence,” as opposed to the distinction between an explicit and implicit quid pro quo.
Furthermore, the Supreme Court’s grant, vacate, and remand order in Siegelman v. United States,
130 S. Ct. 35442 (2010), does not make any mention of McCormick, let alone suggest that
Skilling somehow expanded McCormick’s scope in the manner now urged by defendant.
5
Ring attempts to distinguish this case from Whitfield, 590 F.3d 325, Ganim, 510 F.3d
134, and Kemp, 500 F.3d 257, by comparing the “rare and costly” gifts provided by the
defendants in those cases with the relatively inexpensive meals and tickets at issue here. (MJOA
at 16.) As the government has correctly pointed out, such an argument confuses evidence
sufficient to obtain an honest-services fraud conviction with evidence necessary to obtain such a
conviction. (See Government’s Response to Motion for Judgment of Acquittal at 18-19.) These
cases simply do not stand for the proposition Ring urges: that gifts that nonetheless meet the
definition of “things of value” can be sufficiently inexpensive that they cannot imply the
existence of a quid pro quo as a matter of law. Moreover, the fact that free meals and tickets
were “commonplace lobbying tools” is of no moment. (MJOA at 16). Ring was neither charged
with nor convicted of the use of such tools, but rather with, inter alia, participating in a scheme
to exchange things of value for official acts. 3 Defendant counters that “any inference that these
gifts standing alone can serve [as] bribes” is irrational. (MJOA at 17.) Of course, the evidence
of the things of value provided by defendant to public officials did exist in a vacuum; the jury
heard nearly two weeks of testimony focused on email communications, much of which was
generated by the defendant, and extensive co-conspirator testimony.
Ring attacks the sufficiency of the evidence relating to David Lopez’s trip to Puerto Rico,
arguing that “the evidence barely showed that Mr. Lopez went to Puerto Rico at all, much less
that the trip was a quid pro quo bribe.” (MJOA at 24.) As an initial matter, the Court notes that
no specific count was predicated on this trip—and thus the government’s failure to prove that it
constituted a quid pro quo bribe would not necessarily require a judgment of acquittal on any
3
Moreover, the Court notes that Julie Doolittle’s compensation from what the government
alleges to be a “little- or no-work job” could hardly be described as a “commonplace lobbying
tool,” and totaled approximately $96,000. Cf. Kincaid-Chauncey, 556 F.3d 923 (upholding
honest-services fraud conviction where cash bribes totaled just $18,800).
6
count. Regardless, Ring’s argument suffers from a more serious flaw. The government was not
required to prove what Lopez actually did or did not do on the trip to Puerto Rico. The relevant
issue is whether Ring intended to bribe Lopez. And the government certainly provided the jury
with sufficient evidence in the form of emails between Ring and Jack Abramoff from which such
intent could be inferred. (See, e.g., GX-KR 225; GX-KR 226.)
Similarly, Ring attacks the government’s evidence that he and Jack Abramoff provided
Julie Doolittle with a “little- or no-work job” by focusing primarily on the lack of evidence
regarding what work Ms. Doolittle did or did not do. This misses the point. Ring was charged
with participating in a scheme to defraud, the object of which was for Ms. Doolittle to be paid for
doing little or no work. Again, the relevant issue is the intent of defendant and his co-
conspirators in setting up the job, not whether Ms. Doolittle in fact “worked sufficiently hard for
her money” after she had been given the job. (MJOA at 21.) In addition, Ring attacks his
conviction on Count VIII based on what he argues was his own limited involvement in setting up
the job for Ms. Doolittle. (MJOA at 19-20.) This argument fails to appreciate the nature of a
“scheme to defraud,” as charged in Count VIII. Honest-services fraud requires only that the
government prove participation in a scheme to defraud, and that Mr. Ring participated in that
scheme. Defendant’s personal involvement with the details of setting up the job for Ms.
Doolittle is irrelevant. 4 Moreover, Ring’s argument ignores the Court’s instructions to the jury
pursuant to Pinkerton v. United States, 328 U.S. 640 (1946), which imputes liability to Ring for
the actions of his co-conspirator, Jack Abramoff. While the number of emails personally sent by
4
Ring’s argument that Count VII is based upon an email relating to a fundraiser suffers from a
similar defect. Count VII alleges a scheme to defraud, and as such the email in question need
only be in furtherance of the scheme. There is no requirement that the wire itself must itself
establish the necessary quid pro quo.
7
the defendant or his precise level of involvement in the details of setting up the job for Ms.
Doolittle are certainly relevant to this issue, they are not dispositive. 5
Ring continues to argue that Skilling requires an honest-services bribery scheme to be
successful, in that it requires participation of a public official in the scheme. Thus, defendant
reasons, the government’s failure to show “active participation” in the scheme by a public
official by means of “acceptance of bribes or kickbacks” should prove fatal to its case. (MJOA
at 3; Dkt. No. 155 at 25, 31-32.) The Court has repeatedly rejected this argument, because it is
abundantly clear that honest-services fraud punishes a “scheme to defraud,” as opposed to the
completed fraud itself. See United States v. Potter, 463 F.3d 9, 16 (1st Cir. 2006) (holding that
public official does not have to participate in the scheme to establish honest-services fraud by
private individuals); Pasquantino v. United States, 544 U.S. 349, 371 (2005) (“The wire fraud
statute punishes the scheme, not its success.” (citations and quotation marks omitted)). 6
Indeed, this Court has previously held:
[A]s a matter of law, public officials do not need to be co-
conspirators. Private parties alone can conspire to pay illegal
gratuities to a public official or to deprive the public of that
official's honest services without ever committing the actual
offense, and thus without ever interacting with that official. The
gratuities provision at issue here, 18 U.S.C. § 201(c)(1)(A),
pertains only to those giving gratuities; it is subsection (c)(1)(B),
5
The Court further notes that jury’s split verdict on the counts pertaining to John Albaugh does
not in and of itself merit a judgment of acquittal. See United States v. Powell, 469 U.S. 57, 58
(citing Dunn v. United States, 284 U.S. 390, 393-94 (1932)).
6
Thus, the government was required to prove a “two-way nexus,” but not in the way Ring
argues. (See MJOA at 8 (quoting United States v. Schaffer, 183 F.3d 833, 841 (D.C. Cir. 1999).)
Had the government shown that Ring participated in a scheme to give things of value to public
officials with only the intent of rewarding past behavior, he could not be found guilty of a bribery
(as opposed to an illegal gratuity) scheme. Here, however, the jury’s verdict indicates a finding
that defendant gave things of value with the intent “to receive an official act in return for the
receipt by the public official of [the] thing of value.” (Dkt. No. 222 [Jury Instruction 42] at 49-
50.)
8
not charged here, that applies to public officials who accept
gratuities. A conspiracy to give a gratuity therefore does not
require that a public official be part of the conspiracy. Similarly,
the honest services statute does not require that a public official be
among the schemers, and so a conspiracy to devise such a scheme
requires no public official's participation. Potter, 463 F.3d at 16-
17.
United States v. Ring, 628 F. Supp. 2d 195, 219 (D.D.C. 2009). A similar analysis applies to
federal bribery statutes. While 18 U.S.C. § 201(b)(1) prohibits offering bribes, 18 U.S.C. §
201(b)(2) prohibits accepting them. While Ring correctly notes that Skilling limited the scope of
honest-services fraud to cases involving bribery or kickbacks, it did not, as defendant suggests,
somehow require simultaneous proof of § 201(b)(1) and (b)(2) in order to successfully prove
honest-services fraud. 7 See Urciuoli, 613 F.3d at 17 (“The courts . . . have consistently
construed “scheme” in this context to mean that those who bribe public officials take part in a
scheme to deprive the public of the honest services of those they attempt to influence.”) In other
words, Skilling does not require proof of a “bribery agreement,” as defendant contends. (MJOA
Reply at 11.) The government need only prove a scheme to defraud, and to do this, it need not
call the government officials to the stand.
In essence, defendant’s position appears to be premised on an attack on the “retainer” or
“stream of value” theory of honest-services bribery. This Court has previously rejected this
attack, Ring, 628 F. Supp. 2d at 210 (citing Kemp and Ganim), and this prior ruling was not
disturbed by Skilling, which cited with approval the same honest-services cases relied upon by
this Court. Skilling, 130 S. Ct. at 2934. The Court therefore similarly rejects Ring’s attempt to
establish a test for honest-services fraud that would require the testimony of a public official in
7
Ring’s reliance in this motion and at argument on United States v. Orenuga, 430 F.3d 1158,
1166 (D.C. Cir. 2005), for the proposition that in a bribery case, “the illegal conduct is taking or
agreeing to take money for a promise to act in a certain way” is therefore misplaced (MJOA at 7-
8), as Orenuga was charged only under § 201(b)(2).
9
order to secure a conviction. The government is entitled, as it has done here, to rely on
cooperators and internal emails from which the jury can infer the existence of a scheme to
defraud. Defendant’s insistence that the government establish its case in some other manner than
the one it chose is inconsistent with Rule 29, which requires the Court to consider all the
evidence in the light most favorable to the government.
D. Participation in the Conspiracy
Ring argues that the government failed to establish sufficient evidence “to establish Mr.
Ring’s knowing and intentional joinder” in a conspiracy agreement. (MJOA at 26.) In support
of this argument, Ring asserts that “[w]hat would be evidence of a conspiracy is testimony or
evidence concerning Mr. Ring’s communications from which his joinder into a conspiracy could
rationally be inferred.” (Id. at 27.) Unfortunately for Ring, the government has done just that,
and presented the jury with numerous email exchanges between Ring and his co-conspirators and
from which the jury could rationally infer that the defendant joined a conspiracy to commit
honest-services fraud and illegal gratuities. See, e.g., GX-KR 225-26 (emails between Ring and
Abramoff setting up trip for David Lopez); GX-KR 341 (emails between Ring and Abramoff
regarding basketball tickets for Robert Coughlin); GX-KR 553 (“I hate when we spend all that
money and don’t get any return on our investment.”). 8
E. Illegal Gratuity
Finally, defendant argues that the government’s evidence of an illegal gratuity was
insufficient as a matter of law. First, Ring renews his earlier assertion that Coughlin did not
perform an “official act” as defined by Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007)
8
As conceded by defense counsel at oral argument, defendant does not take the position that the
evidence was insufficient to establish the existence of a conspiracy, only that defendant did not
join it.
10
(en banc). (MJOA at 28-29; MJOA Reply at 2.) This Court previously addressed this argument
in response to defendant’s Motion to Dismiss, ruling that Coughlin’s actions as alleged by the
indictment met the definition of an “official act” under Valdes. United States v. Ring, 628 F.
Supp. 2d 195, 204-06 (2009). Having considered the evidence presented to the jury, the Court
declines to reverse its previous ruling on this question.
Ring also challenges the sufficiency of the evidence on the substantial causation element
established by United States v. Shaffer, 183 F.3d 833, 843 (D.C. Cir. 1999). (MJOA at 28-29;
MJOA Reply at 2.) The Court instructed the jury consistent with Shaffer, see Dkt. No. 222 at 58
[Jury Instruction 46] (“you must find that the defendant provided the thing of value for or
because of a specific official act performed or to be performed by Mr. Coughlin”), and there was
ample evidence presented at trial from which the jury could conclude that Ring provided Mr.
Coughlin with basketball tickets “for or because of” his forwarding the email about the Eshkol
school. See, e.g., GX-KR 341 (“Bob Coughlin helped on the school and is now looking for
tickets to the Wizards on both March 15th and 18th. Do we have 4 tickets available for either or
both games?”).
II. MOTION FOR A NEW TRIAL
A. Rule 33 Standard
Rule 33 of the Federal Rules of Criminal Procedure provides that “the court may vacate
any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a).
“The Rule does not define ‘interests of justice’ and the courts have had little success in trying to
generalize its meaning.” United States v. Cabrera, 734 F. Supp. 2d 66, 87 (D.D.C. 2010)
(quoting United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989)). “Nevertheless, courts
have interpreted the rule to require a new trial ‘in the interests of justice’ in a variety of situations
in which the substantial rights of the defendant have been jeopardized by errors or omissions
11
during trial.” Id. A defendant has a heavy burden under Fed. R. Crim. P. 33(a). “[T]he evidence
must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let
the verdict stand . . . . This power should be exercised with caution, and is invoked only in those
exceptional cases in which the evidence weighs heavily against the verdict.” United States v.
Howard, 245 F. Supp. 2d 24, 30 (D.D.C. 2003) (quoting United States v. Edmonds, 765 F. Supp.
1112, 1118 (D.D.C. 1991)).
B. No Basis for Arguing Jury Confusion Created by Government “Misconduct”
or “Misleading” Evidence
Ring falls far short of the mark in his attempt to meet his “heavy burden” under Rule 33.
He begins by attacking the government’s frequent use of “intent to influence” and “intent to
reward” as incorrect statements of the governing legal standards. This argument is
fundamentally flawed for a number of reasons. As an initial matter, Ring’s argument depends on
the assumption that the jury did not follow the Court’s instructions and instead chose to rely on
the government’s description. This is not the law. Rather, it is assumed that juries follow the
instructions they are given, and there is absolutely no indication here that that did not happen.
See Mouling, 557 F.3d 658, 665 (citing Richardson, 481 U.S. 200, 211).
Moreover, defendant’s characterization of the proper legal intent is erroneous and
contrary to the final jury instructions. Defendant continues to contend that “unilateral” or “one-
sided” intent is insufficient, and therefore, he essentially argues that he can only be convicted of
honest-services fraud if the government proves that scheme to defraud was successful and that
the public official agreed to the scheme. As this Court has repeatedly held, this view of honest-
services fraud is incorrect as a matter of law. See Dkt. No. 222 [Jury Instruction 42] (“[T]he
defendant must intend to receive an official act in return for the receipt by the public official of a
thing of value. . . . It is not necessary for the government to prove that the scheme was
12
successful . . . all that must be shown is that things of value were given with the intent of
securing an official act or acts in return . . . .”); Urciuoli, 613 F.3d 11, 17-18 (approving of
instruction requiring jury to find that defendant “intended [a] payment to cause [a public official]
to alter his official acts”).
Nor was it error for the government to use evidence of campaign contributions in its case.
The jury was given repeated and clear McCormick instructions each time such evidence was
elicited, and as previously held, the jury was told what use it could make of this evidence, so
there was no legal basis for its total exclusion on the basis of the possibility of confusion. Again,
there is simply no reason to conclude that the jury was incapable of following the Court’s
instructions.
Similarly, defendant contends that he is entitled to a new trial because the government
“prevent[ed] jurors from receiving clear guidance about the quid pro quo bribery standard it was
compelled to meet by the Supreme Court’s Skilling decision” and “successfully prevented
application of the explicit quid pro quo standard of McCormick v. United States.” It is not error
for the government to argue in favor of its preferred interpretation of the law, particularly where,
as here, its interpretation is correct. See supra Part I.B. 9
Ring next demands a new trial based on the government’s improper question to Mr. Volz,
falsely suggesting that the government was in possession of certain evidence. This single event
occurring in the middle of a ten-day trial does not rise to the level of prejudice necessary to
warrant a new trial. Not only was it immediately followed by curative instructions from the
9
Likewise, it was not misconduct for the government to successfully object to the defendant’s
misstatement of the law in its opening statement, prompting the Court to provide a cautionary
instruction to the jury. As the Court has repeatedly held, the government need not prove a
mutual agreement between defendant and the public officials he schemed to bribe. See supra
p. 9.
13
Court (Oct. 27, 2070 A.M. Tr. at 106:7-10), but in addition, the jury was properly instructed that
statements and questions by counsel are not evidence. (Dkt. No. 222 at 10 [Jury Instruction 10].)
Ring chides the government for its “refus[al]” to call any public officials to testify,
instead relying on the testimony of two co-conspirators. Of course, the government may not
argue materially false statements to the jury that it knows to be false, or suborn perjury from
what witnesses it does call. See Reyes v. United States, 577 F.3d 1069 (9th Cir. 2009). 10 But
this Court is aware of no authority that requires the government to call certain witnesses. 11
Accordingly, defendant is not entitled to a new trial due to the government’s use of summary
charts, evidence of the inner-workings of Congress, or repeated references to “Team Abramoff.”
While defendant claims that the government’s evidence as to each of these topics misled the jury,
it had ample opportunity—which it took advantage of—to cross examine the government’s
witnesses on these topics. 12
10
In his motion and during argument, defendant cited Reyes in support of his argument that he is
entitled to a new trial because of the government’s failure to call certain witnesses. (Defendant’s
Motion for New Trial [“New Trial Mot.”] at 15.) But while Reyes also involved witnesses called
by neither the prosecutor nor the defendant, it was not the failure to call these witnesses that led
the Ninth Circuit to remand for a new trial. Rather, it was the prosecutor’s blatant misconduct in
making false statements of material fact to the jury during closing arguments. See Reyes, 577
F.3d at 1076-79.
11
Indeed, as the government points out, Ring in effect requests not just a new trial, but a new
trial where the government is forced to call certain witnesses in its case-in-chief. (See
Government’s Response to Motion for New Trial at 9.)
12
Additionally, while not required to do so, defendant was also free to call its own witnesses,
including the public officials at issue. The Court had previously ruled that David Ayres, Laura
Ayres, and Peter Evich could not invoke the Fifth Amendment, and indicated that it would
consider the issue as to David Lopez upon request. (Oct. 13, 2010 Tr.) Nor did defendant
inquire as to the validity of the Fifth Amendment privileges of Robert Coughlin, John Doolittle,
or Julie Doolittle. Contrary to defendant’s assertion at argument, Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527 (2009), does not require otherwise. Melendez-Diaz is a
straightforward post-Crawford Confrontation Clause case, and the sentence fragment defendant
quotes out of context does not stand for the broad principle he claims. Compare New Trial Mot.
at 10-11 (“[T]he Constitution ‘imposes a burden on the prosecution to present its witnesses, not
14
Finally, it was not misconduct for the government to successfully object to defendant’s
attempt inform to the jury that Congressman Doolittle had not been criminally charged. As the
Court previously held in sustaining this objection (see Oct. 26, 2010 P.M. Tr. at 28-30), such
evidence is simply not probative of defendant’s argument that Volz’s relationship with
Congressman Ney was not comparable to Ring’s relationship with Congressman Doolittle, and
therefore there is no basis to invoke the doctrine of curative admissibility.
CONCLUSION
For the foregoing reasons, the Court denies defendant’s motion for a judgment of
acquittal and his motion for a new trial. A separate order accompanies this Memorandum
Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: March 11, 2011
on the defendant to bring those adverse witnesses into court.’”) with Melendez-Diaz, 129 S. Ct.
at 2540 (“[T]he Confrontation Clause imposes a burden on the prosecution to present its
witnesses, not on the defendant to bring those adverse witnesses into court.” (emphasis added)).
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