The D.C. Circuit issued its decision in United States v. Ring today, a case stemming from the Abramoff scandals. Kevin Ring, one of Jack Abramoff’s top lobbyists, was convicted of three counts of honest services fraud, one count of paying an illegal gratuity, and one conspiracy count.
Honest Services Fraud: What Was in Your Head?
The honest services fraud statute has been the subject of much litigation over exactly what the government must prove in order to obtain a conviction. In this case, the government had to prove that Ring gave gifts with the intent to influence an official act through a corrupting quid pro quo. The D.C. Circuit made three important decisions with respect to giving gifts to public officials:
1.) The government must demonstrate there was a quid pro quo between a gift and official action, but unlike campaign contributions, the quid pro quo need not be explicit. This case leaves a lot of questions, however, about how much and what type of proof is required.
2.) To convict for honest services fraud, the government official does not have to accept the offer – merely making the offer is sufficient, as long as the offer is clear to the government official.
3.) It is the intent of the giver that is important in honest services fraud, not whether the recipient accepts the payment. The court held that “In the end, it is this mens rea element that distinguishes criminal corruption from commonplace political and business activities.” In other words, the government must prove that the intent of giving a gift is to influence official action.
Gratuity: Is an Email an Official Act?
The illegal-gratuity statute makes it unlawful to give, offer, or promise anything of value to any public official for or because of any official act. Ring was charged with giving basketball tickets to a DOJ attorney who helped expedite a visa application. When Ring contacted him, the DOJ attorney forwarded Ring’s email to another DOJ official, who told Ring to call a particular person at INS. The DOJ official (not the attorney Ring initially contacted) called a secretary at INS and then forwarded the email trail to her. She sent it to five people to improve the chances it would get acted on. The application was expedited within the day and Ring gave his initial contact – the attorney at DOJ – basketball tickets.
Ring argued that because the attorney at DOJ was not the decision maker with respect to the visa application, he did not take an official action. The court rejected this argument, holding that it was the attorney’s effort to “influence the visa application process” that was the official action.
Conspiracy: Can a Campaign Contribution be Evidence of Conspiracy?
The final issue was whether the government should have been allowed to introduce evidence about Ring’s lawful campaign contribution as evidence of how Ring interacted with officials and of how he viewed money as a means to a political end. The court grappled with whether it was appropriate to allow this evidence, since the contributions themselves were legal. Indeed, they involved activities protected by the First Amendment.
Ultimately, the court held that although there were concerns about the evidence, the trial court had included very careful warnings to the jury about what they could infer from this evidence. Specifically, the court found the contributions demonstrated how Ring gained access to officials and put the other gifts in context and, more importantly, demonstrated the “transactional relationship with officials and the manner in which he pursued his clients’ political aims.”
Now facing 20 months in jail – starting his sentence after Abramoff ended his – what does Ring’s case teach us? Four things:
- Pattern and practice are important. The government viewed Ring’s behavior not as single incidents, but as patterns of behavior. Lawful campaign contributions demonstrated the transactional nature of his lobbying efforts and explained why a public official would take actions seemingly in response to small gifts.
- Watch what you say in private and through email. Ring often joked about how lawful campaign contributions were a quid pro quo for him. He also talked about “rewarding loyal soldiers” with contributions. These jokes – some of which were made by email – were very damaging to his case.
- When giving a gift, it should never be considered a reward for any kind of official action. Remember, gifts are subject to very strict limitations, but even if they are permissible under the gift rules, the giver’s intent can make them illegal.
- Official actions include much more than voting on a bill or making decisions within a person’s authority. You cannot reward someone with a gift even for passing on an email or asking another official to help.