Sunday, December 15, 2019

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

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


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