United States v. Ring

Opinion

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. § 1346

criminalizes 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)).