Case o' The Week: Ninth Says No to Iffy Quo - Kimbrew and federal bribery statute defenses

  It’s who you know, for quid pro quo.

United States v. Kimbrew, 2019 WL 6693744 (9th Cir. Dec. 9, 2019), decision available here.

Players: Decision by Judge Nguyen, joined by Judge Miller and ED NY DJ Vitaliano.  

Facts: Michael Kimbrew worked as a field representative for a Congresswoman. Id. at *1. He met with owners of a marijuana dispensary, and implied he could protect them despite their lack of a permit. Id.

 The FBI got wind of this overture.

  An undercover FBI agent, posing as the owner of the marijuana shop, met with Kimbrew. Id. at *2. Kimbrew assured the undercover agent that he had substantial influence in the City of Compton, a close relationship with the City Attorney, and the ear of the Congressman. Id. Kimbrew solicited and received a $5,000 payment from the undercover agent. Id.

  Kimbrew was charged with bribery of a public official, in violation of 18 U.S.C. § 201(b)(2)(A). Id. He was convicted after a jury trial. Id.

Issue(s): “Michael Kimbrew appeals his conviction[ ]. . . for . . . bribery of a public official. . . . Kimbrew does not dispute that he took money in exchange for a promise that he made as a federal public official. He instead argues that he promised to do the impossible, so his conduct falls outside the purview of § 201 bribery.” Id. at *1. “Kimbrew . . . contends that the government failed to prove that he could ‘make good’ on his promises, and therefore he did not commit an ‘official act’ within the meaning of the bribery statute.” Id. at *3.

Held: “We are not persuaded, and we affirm.” Id. at *1. “Kimbrew’s argument is both factually and legally incorrect.” Id. at *3. “The evidence shows that Kimbrew and the City Attorney knew each other, and that both worked out of Compton City Hall. . . Although the City Attorney denied that Kimbrew had any influence over him, the jury also heard recorded conversations in which Kimbrew attested that he did in fact have such influence.” Id. at *3. “Similarly, the jury could have reasonably concluded that Kimbrew had a means of influencing the Congresswoman’s actions.” Id. at *4.

  “The statutory definition of ‘official act’ contains broad temporal language that indicates the question or matter at issue need not currently be pending or capable of being brought before a public official . . . This language encompasses scenarios in which a briber might anticipatorily seek to induce official action relevant to a circumstance yet-to-come.” Id. at *4. “[ ][T]he prosecution was not required to prove that Kimbrew could achieve the outcome he promised. The relevant inquiry, instead, is whether Kimbrew agreed to use his official position to exert pressure on another official to perform an ‘official act,’ or to advise another official, knowing or intending that such advice will form the basis for an ‘official act’ by another official. . . . Nowhere in the statute or in the governing case law is there a requirement that the bribe recipient be able to succeed in exerting that pressure or persuading through his advice to realize the desired result.” Id. (internal citations and quotations omitted).  

Of Note: Quid pro quo. 

  Even an unsuccessful quo, or one tied to a contingency, is a federal bribe if the quid is proposed by a government official. Id. at *4. As Judge Nguyen explains, “a bribe tied to a contingency is no less a bribe.” Id. 

  Timely insight from the Ninth Circuit, into the federal bribery statute.

How to Use: Judge Nguyen warns that the “reach of § 201 is not unlimited.” Id. at *5. There must be nexus between the official’s position, and the quo he promises. Id. If the quos are more attenuated than those in Kimbrew, a defense to the federal bribery statue may be available.

                                               

For Further Reading: Last week the Senate confirmed the ninth and tenth Trump appointees, for the Ninth Circuit.

The Hon. Judge Bumatay (L), and the Hon. Judge VanDyke (R)

For an interesting overview of the historical context of these appointments, see “The changing makeup of the ‘nutty’ 9th Circuit,” available here. 

Image of “Quid pro Quo” from http://secureservercdn.net/166.62.109.86/thq.cd2.myftpupload.com/wp-content/uploads/2019/11/Quid-Pro-Quo-Blog-1068x610.jpg  

Images of the Hon. Judges Patrick Bumatay and Lawrence VanDyke from https://www.law.com/therecorder/2019/11/21/senate-judiciary-moves-ninth-circuit-nominations-forward-in-party-line-vote/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Finds No Value in "No Value" argument - Renzi and loss calculations

Rep. Rick Renzi

  $200,000 for Arizona wine?

United States v. Renzi, 2014 WL 5032356 (9th Cir. Oct. 9, 2014), decision available here.

Players: Decision by Judge Tallman, joined by Judges Callahan and Ikuta.

Facts: Before he was an Arizona Congressman, Renzi was friends and business partners with Sandlin. Id. at *3. After Renzi was elected, he sold Sandlin his share in a real estate company for a $800k promissory note. Id. 

   Sandlin also owned a tract of land near federal property in Arizona. Id. After Renzi became a Congressman, he got involved in a deal to trade federal land (something that requires Congressional action). Id. at *5. Renzi pushed the interested property group to buy Sandlin’s tract as part of this exchange – in exchange, Renzi promised to use his “free pass” to get a land trade through Congress. Id. at *5. 

  The property group accordingly bought Sandlin’s tract: Sandlin then promptly wrote a $200,000 check to “Renzi Vino,” an Arizona wine company owned by Renzi. Id. at *5. Sandlin later paid off the remainder of the $800k promissory note owed to Renzi. Id. at *5. 

  Renzi was later convicted of public corruption, insurance fraud, and racketeering; Sandlin was convicted of a subset of these counts. Id. at *5. At sentencing, the district court applied USSG § 2C1.1 and determined the value to determine the offense level was the $200k Sandlin paid to Renzi with the check to Renzi's Arizona wine company.

Issue(s): “Renzi and Sandlin challenge the district court’s calculation of values under § 2C1.1(b)(2). They content that the district court erred by concluding that the ‘value of the payment’ was $200,000 (the amount of the debt to Renzi that Sandlin paid off), rather than zero (the net value to Renzi).” Id. at *19.

Held: “[W]e hold that the district court did not err in imposing a ten-level enhancement under § 2C1.1(b)(2) to both Renzi and Sandlin.” Id. at *20.

Of Note: Guideline Section 2C1.1(b)(2) has four prongs to calculate value – the first, used here, is “the value of the payment.” Rep. Renzi argued that the guideline commentary, and the Ninth Circuit’s recent decision in White Eagle, means that the value for the guideline calculation is the net value of the benefit. Id. at *19. 

  Here, the payment (arguably) had no value: Sandlin simply owed the Congressman a debt, and paid it. Id. Judge Tallman doesn’t buy it, and concludes that while this “net value” principle may apply to other prongs in the guideline – it doesn’t wash with the first prong. Id. at *19-*20. As Renzi argued, this may create “anomalous results” in how the guideline is interpreted – but in the Ninth, prong one of this guideline is now carved out from the “net value” analysis.

How to Use: The Renzi decision is a tome, chock full of issues – none of which turn out well for the defense. One that may come up in indigent defense is “honest services” fraud. Id. at *8.

  The Ninth jury instructions recommend that the district court “specifically describe the thing of value just as it is described in the indictment to avoid a variance.” Id. at *8. Renzi complained that the district court failed to do so here, id. at *8, but the Judge Tallman counters that “the recommendation is just that – a recommendation.” Id. 

  This argument might have more traction if there actually was a variance from the “thing of value” identified in the indictment – the Ninth concedes that was the issue in its decision in Choy – but absent that error, a vague honest services instruction won’t get much traction on appeal. Id.

                                               

For Further Reading: Q: When is it good to have more drug offenders on Probation's list? 
  A: When it is a list of potentially eligible inmates, for a drug resentencing reduction. Through some great sleuthing, the ND Cal Office of Probation has bumped up the list of (potentially) eligible offenders in the district to around 600. The District Court has also helped with the resentencing effort, adopting a welcome new order that will help expedite appointments, triage eligible candidates, and make sure all inmates seeking relief will have counsel review their application. For a summary of the new ND Cal order, and a link to the order itself, see web page here.

Image of (former) Representative Rick Renzi from http://www.trivalleycentral.com/casa_grande_dispatch/arizona_news/months-suggested-for-renzi/article_0914f8cc-3a67-11e3-acf3-0019bb2963f4.html

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org .

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