Earlier this year, in upholding the conviction of prominent former lobbyist Kevin Ring, a federal appeals court in Washington called the distinction between legal lobbying and criminal conduct "subtle." The court went on to say that the line "spells the difference between honest politics and criminal corruption."
The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that heard Ring's case was unanimous in its late January ruling in the high-profile prosecution, which flowed from the Jack Abramoff lobbying scandal in Washington. Still, the judges said "this case is nothing if not close."
Ring's lawyers at Miller & Chevalier on Monday asked the full D.C. Circuit to review the panel decision, arguing that the ruling conflicts with U.S. Supreme Court precedent and decisions in other federal appellate courts. Ring's petition is here.
Miller white-collar defense partners Timothy O'Toole and Andrew Wise said the panel opinion incorrectly resolved two issues of "exceptional importance"—the role of campaign contributions in an honest services case and whether such a prosecution requires proof of a bribery agreement.
Ring's lobbying tactics, as the D.C. Circuit put it, "got him in trouble." Ring, an Abramoff associate, provided dinners, drinks, travel, and sports tickets to congressional and executive branch officials to induce or reward official acts, prosecutors said.
Convicted at trial in Washington on honest-services counts, making an illegal gratuity and conspiracy, Ring was sentenced Ring to 20 months in prison. U.S. District Judge Ellen Segal Huvelle allowed Ring to remain free pending the outcome of the appeal.
Writing for the D.C. Circuit panel in January, Judge David Tatel said "a defendant may be guilty of honest-services bribery where he offers an official something of value with a specific intent to effect a quid pro quo even if that official emphatically refuses to accept." In other words, Tatel wrote, a defendant can be found guilty of honest-services fraud in a bribery scheme without any agreement on behalf of the recipient of the gift or payment.
In the court papers filed Monday, Ring's attorneys said the federal bribery statute identifies an "offer" as a prohibited act. But the offer, the lawyers said, must be undertaken "corruptly."
"The Supreme Court has long construed this language to mean that bribery is a two-way crime that cannot occur in the absence of an agreement," Ring's attorneys said. The D.C. Circuit should "resolve the resulting uncertainty about the fundamental question of whether bribery requires proof of a quid pro quo agreement," O'Toole wrote in the petition in the appeals court.
Ring's attorneys said in their papers that "without some conduct of the offeree indicating acceptance, a simple offer does not demonstrate the corrupt agreement that is the hallmark of bribery."
Ring's lawyers point to two recent federal appellate court decisions to try to bolster their argument.
The U.S. Court of Appeals for the Sixth Circuit said in a ruling last month that "an agreement is a key component of a bribe." Last year, the U.S. Court of Appeals for the Third Circuit said an agreement—between the person who makes the payment and the official who receives it—is required to prove honest services fraud by bribery, Ring's attorneys said.
The D.C. Circuit panel decision also presents a substantial First Amendment issue over the role of campaign contributions in honest services fraud prosecutions.
The panel, Ring's attorneys said, should not have approved the use of "Mr. Ring's lawful, constitutionally protected political contributions to support improper inferences of criminal intent."
"The fact that Mr. Ring gave campaign contributions within the boundaries of the law does not, in any legitimate way, compel the conclusion that he intended to violate the law when he engaged in traditional, lobbying-related hospitality," Ring's lawyers said.
The D.C. Circuit didn't immediately ask the Justice Department to respond to Ring's petition for a full-court hearing.