Ring Case to Test Corruption Law

Posted July 26, 2010 at 6:33pm

The fate of former Capitol Hill aides caught in the influence-peddling scandal centered on ex-lobbyist Jack Abramoff may hang on the trial of their peer Kevin Ring, whose case is among the first to test the effect of a Supreme Court decision that restricted the scope of a key public corruption statute.

Ring is scheduled to begin his second trial in October — a federal judge declared a mistrial in October 2009 after jurors failed to reach a unanimous verdict — making it among the first corruption cases since the Supreme Court decision in late June.

Federal prosecutors had previously employed the “honest services” statute in a broad range of public corruption cases, including Ring’s indictment and numerous plea deals in connection with the Abramoff investigation. The honest services law provided prosecutors more legal flexibility than the rigid requirements of other crimes, such as bribery.

But the Supreme Court ruled that the federal statute now applies only in cases involving bribery or kickback schemes, meaning prosecutors may now have to prove bribery to pursue an honest services fraud charge.

That ruling has sparked questions over whether the government will still be able to prosecute honest services cases, and Ring’s prosecution appears to be the test case.

U.S. District Judge Ellen Huvelle, who is overseeing several of the Abramoff-related cases, said at a hearing Thursday involving former House aide Mark Zachares: “Honest services wasn’t thrown out. For better or worse, it still exists.”

But Huvelle has moved back the sentencing dates to October for Zachares and November for another defendant, Michael Scanlon, who each plead to charges tied to the Abramoff investigation. At last week’s hearing, Huvelle indicated she set the new dates with an eye to Ring’s trial.

In the meantime, Huvelle will hear arguments on motions in the Ring case next week, including the former House aide’s motion for a judgment of acquittal.

“Mr. Ring submits that, even viewing the evidence in the light most favorable to the government, that evidence is insufficient as a matter of law to support a prosecution under the honest services statute, as that statute has been limited by the Skilling decision,” Ring’s defense attorneys, Andrew Wise and Timothy O’Toole, wrote in a motion filed July 19, referring to the Supreme Court’s recent ruling in Skilling v. United States.

“The days in which the honest services fraud statute could be contorted to reach ‘bribery-esque,’ ‘bribery-lite’ or any other arguably dishonest conduct are now over,” the defense motion argued.

Ring, a one-time aide to ex-Rep. John Doolittle (R-Calif.) and ex-Sen. John Ashcroft (R-Mo.), is accused of providing tickets to sporting events and other gifts to Congressional staff in exchange for assistance for Abramoff’s clients. He has denied wrongdoing.

But federal prosecutors have indicated the Justice Department intends to push ahead with existing charges in Ring’s case and others.

At a hearing earlier this month, federal prosecutor Peter Koski said the DOJ does not plan to drop any of the eight charges that it has filed against Ring, including six counts of honest services fraud.

Federal prosecutor Richard Pilger echoed that stance at a hearing in Zachares’ case Thursday, stating: “Under the reasoning in Skilling, the charge is alive.”

Zachares, a former House Transportation and Infrastructure Committee aide, pleaded guilty in 2007 to one count of conspiracy to commit honest services fraud.

Zachares’ defense attorney, Ed MacMahon, raised questions last week over the validity of his client’s plea agreement and sought permission to submit a brief to the court on the issue.

“We couldn’t sentence Mr. Zachares for something that after Skilling wouldn’t be a crime,” MacMahon said.

Huvelle noted that Zachares could select from a range of options, including vacating his plea or amending the agreement.

“There are ways to redo something like this simply,” Huvelle said.

The judge raised the possibility that Zachares could even enter a plea related to his financial disclosure forms if he failed to accurately report gifts or other items.

“There are a lot of ways you can address this,” she later added.

In an apparent reference to other outstanding plea agreements, Huvelle also twice encouraged Pilger to be “creative” and suggested the government should avoid using the same tactic in each of the honest service cases to avoid a domino effect should a higher court reject any District Court ruling.

It is possible that other plea agreements could be affected by the Supreme Court’s decision, including pleas from Tony Rudy, a “Team Abramoff” lobbyist and former aide to then-House Majority Leader Tom DeLay (R-Texas), and Todd Boulanger, a Team Abramoff lobbyist and former aide to then-Sen. Bob Smith (R-N.H.).

Both pleaded guilty to at least one corruption charge, including honest services fraud, but they have yet to be sentenced owing to their ongoing cooperation with Justice Department prosecutors. Prosecutors have indicated both men will testify at Ring’s second trial.