United States v. Ring ( 2011 )


Menu:
  •                             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)).
    15