July 1, 2009
Judge Ellen Segal Huvelle ruled yesterday on 5 of Kevin Ring's motions and one government motion in the Abramoff-related case that is scheduled to go to trial in September 2009.
Last week in a 41-page
Memorandum Opinion and Order, Judge Huvelle denied Kevin Ring's motion to dismiss charges in his case. Overall, I would say that the rulings on the 6 motions in her
3-page ORDER may be considered more favorable for the government. Here are the orders:
(1) Defendant's Motion to Suppress Tangible Evidence Regarding Workplace Emails: DENIEDFrom the defendant's
MOTION TO SUPPRESS TANGIBLE EVIDENCE AND INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES AND REQUEST FOR EVIDENTIARY HEARING:
Mr. Ring subjectively believed that the content of his office email correspondence was confidential and private, and could not be reviewed by law enforcement authorities absent a warrant. This belief was based not only on the fact that law firm correspondence, even if by email, is routinely treated as private, but also because neither Preston Gates or Greenberg Traurig, to Mr. Ring’s knowledge, had any policy place during the relevant time period that would have reduced the confidentiality of these communications. Neither employer, for example, had informed Mr. Ring of any right to monitor email, which in turn reinforced Mr. Ring’s subjective belief that his office email communications were not being monitored and were not subject to search by police without a warrant. Mr. Ring submits that these office emails should be suppressed at trial because the warrantless search and seizure of his office emails violates the Fourth Amendment to the United States Constitution.
Ring said he was unaware of any policy that "Company policy to monitor or review the emails of Preston Gates or GT attorney/lobbyists during the relevant time period, and he received no actual or (as far as he knows) constructive knowledge of any such policy -- much less any policy that would permit his employer to provide."
The government responded with
GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION TO SUPPRESS EMAILS, which smacked down Ring's statement. The government produced a document signed by Ring that proves he knew the company email policies at both Preston Gates and Greenberg Traurig LLP. Ring signed this policy statement from Preston Gates:
Electronic communications utilizing the firm’s email systems are not confidential or private. The firm owns all electronic communications and reserves the right to access, monitor and disclose for any purpose all messages sent or received over or stored in its email or computer systems. We currently have no practice of monitoring or reviewing electronic information but reserve the right to do so for any reason, including (without limitation) to analyze the use of systems or compliance with policies, conduct client audits, review performance and conduct and obtain information. The firm reserves the right to disclose any electronic message to law enforcement officials, clients or other third parties.
Please also note that the firm may have to furnish copies of your emails to third parties, e.g., in response to a document production request made in a lawsuit by a third party against you.
He signed a similar policy statement at Greenberg Traurig LLP. The government attorneys said, "The government came to possess the emails in response to valid, reasonable grand jury subpoenas issued to his former employers."
From the document:
In his motion, Ring cleverly distorts the Court’s inquiry. He argues that “he had a reasonable expectation of privacy in his emails.” (Mtn. at 2 (emphasis added).) But the proper question, and the one the Court must decide, is whether Ring had a reasonable expectation of privacy in PGERM’s and GT’s hardware and networks, the places from which PGERM and GT employees obtained the emails in question.
This order was not surprising considering the evidence showing that Ring was not only aware of the company email policies, but signed documents agreeing to them. It is amazing that he even challenged this, which suggests the obvious - that the emails are very damaging to his case.
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(2) Defendant's Motion to Disqualify Counsel: DENIEDThis appears to be a victory for the government since losing a member or members of the prosecution team with in-depth knowledge of the case would have resulted in a set-back for the prosecution team.
In April the Ring defense team objected to William Welch II continuing on his case since he is one of six attorneys being investigated for withholding evidence in former Senator Ted Stevens' trial. (See this
previous post.)
From the
Associated PressThe criminal investigation is being led by Washington attorney Henry Schuelke, who coincidentally is expected to be a witness in Ring's case. The lobbying firm that Ring worked for, Greenberg Traurig, hired Schuelke to conduct an internal investigation after Abramoff was accused of corruption. Ring is charged with two counts of obstruction of justice for lying to Schuelke as part of his investigation.
Ring's attorneys argued in court Monday that Schuelke should not be allowed to testify because he is now investigating Welch. Prosecutors responded that Welch does not have a litigative role in the case.
Huvelle said she wasn't persuaded that Schuelke should be kept off the witness stand. But she told prosecutors they should "have a wall" keeping Welch from the case. "Get his name off," Huvelle said. "Clean it up."
I also think, truth be known, he won't be the head of the division by the time this goes to trial," Huvelle said, suggesting that Attorney General Eric Holder may replace him with another public integrity chief of his choosing.
Ring's attorneys responded that taking Welch off the case now won't change their objection to Schuelke because he's been so heavily involved in the case up to this point. They said Schuelke's testimony could create the "appearance of impropriety."
From
Roll Call:
Although Welch has oversight duties for all cases brought by the Public Integrity Section, the Ring trial is the only case in which he has filed a notice of appearance, indicating he is intimately involved in the proceedings
On May 29, 2009 the Ring defense team filed a
MOTION TO REMEDY PROSECUTORIAL CONFLICT OF INTEREST. The motion asked the judge to remove the entire prosecution team:
Mr. Schuelke, along with another lawyer in his firm, is listed as a potential witness to events alleged in Counts IX and X of the indictment against Mr. Ring. Mr. Welch, the current Chief of the Public Integrity Section of the Department of Justice, has led the prosecution for a number of years. He was a critical decision-maker in the formulation of the charges and in what discovery, especially Brady evidence, was to be provided to Mr. Ring. He has personally appeared at many of the court hearings. His name appears on the indictment, all of the government’s pleadings and, until this issue was raised in a recent hearing, the discovery correspondence. He has been, and remains, the direct supervisor of another member of the trial team. And after the Court’s suggestion at the April 20, 2009 status hearing that he be walled off from the case, Mr. Welch was carbon copied on a communication regarding discovery issues.
The prosecutors thus find themselves in a situation where one of their witnesses is invested with the power and authority to bring criminal charges against their leader (or in Mr. Welch’s case, himself). This dynamic creates an undeniable appearance of impropriety. Moreover, it creates a serious conflict of interest that affects the prosecution team’s ability to fairly perform their constitutional duty to exercise prosecutorial discretion in a way that ensures justice free from distorting personal influence under these circumstances.
Mr. Ring submits that the most appropriate remedy would be disqualification of the prosecution team that Mr. Welch supervised and appointment of new prosecutors charged with reviewing the case, the government’s compliance with the rules and its obligations, and, if merited, dismissal of the indictment. Such a remedy would, however, likely result in a substantial postponement while Mr. Ring remains in jeopardy and reduced to utter penury.
As a result, this Court may prefer instead to remedy the conflict by precluding the use of Mr. Schuelke as a witness and instead limiting the government to the use of another lawyer, also named on the government’s witness list, whose knowledge of material events likely duplicates Mr. Schuelke’s but who is not, as far as the defense is aware, involved in the present investigation of Mr. Welch.
Such an alternative remedy would remove the incentive for the prosecution team to curry favor with one of their witnesses, while at the same time permitting the trial to go forward on its current schedule without prejudice to either of the parties.
The motion continues with a recommendation that if the judge does not dismiss the entire defense team and require the government to begin anew, then counts IX and X (obstruction of justice counts) should be dismissed or severed or the Court should be required not to call Mr. Schuelke as a witness and to call Mr. Shields as a witness. The judge
did rule to partially sever counts IX and X. (See below)
GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION TO REMEDY ALLEGED PROSECUTORIAL CONFLICT OF INTEREST claims that the Ring defense team is filing distracting motions:
The defendant has moved to disqualify the entire prosecution team (or in the alternative dismiss two counts of the Indictment or preclude a fact witness from testifying) on the basis that the fact witness has been appointed to investigate allegations against Mr. William M. Welch II, in an unrelated matter, United States v. Stevens, No. 1:08-cr-231-EGS (D.D.C.).
Mr. Welch is the Chief of the Department of Justice (“DOJ”) Criminal Division Public Integrity Section and the supervisor of one of the three trial prosecutors. These roles, albeit unusual, do not create a disqualifying conflict of interest. There is no ground for any of the various sanctions that the defendant proposes.
Nevertheless, it is apparent that the defendant will continue to use Mr. Welch’s supervision of the Public Integrity Section and the Stevens matter as an excuse for filing distracting motions. Accordingly, Mr. Welch has determined to withdraw himself from supervision over the Ring prosecution. Mr. Raymond Hulser is now Acting Chief of the Public Integrity Section for the purposes of this prosecution. The defendant’s motion, in addition to being meritless, is therefore moot.
The Government claimed that Ring's motions are a transparent attempt "that are obviously not intended to resolve any real issues relating to Mr. Schuelke, but merely to assist the defendant in his other motions challenging the indictment."
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(3) Government's Motion to Compel Reciprocal Discovery: GRANTED IN PART From Judge Huevelle's order:
Granted in part in that the defendant shall satisfy all reciprocal discovery obligations that are the subject of the motion on or before August 11, 2009, including identifying all documents that he intends to introduce during his case-in-chief (including documents that will be used during the cross-examination of a government witness if it is a document that is not being used to impeach, but not documents that will be used for cross-examination purposes only); but DENIED in all other respects.
Among other arguments in their Opposition to Compel Discovery, Ring's attorneys claimed that Mr. Ring should not be required to identify and/or produce documents he intends to use in cross-examination of government witnesses.
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(4) Defendant's Motion for 404(b) Evidence: GRANTED IN PARTThe judge stated that "the government will not be permitted to introduce as 404(b) evidence the documents described in the introductory paragraph and paragraphs 10 and 11 of the government's January 30, 2009 letter to defendant, except that the government may seek to introduce, as evidence of the conspiracy, allegedly false billing statements filed by the defendant where the identity of the recipient was concealed in an effort to further the conspiracy; but DENIED in all other respects."
This order is in response to the defense document,
MOTION TO EXCLUDE EVIDENCE OF UNCHARGED MISCONDUCT. In this document the Defendant requested the court to exclude evidence regarding fraudulent billing of clients, stating that it has “no probative value to charges that Mr. Ring sought to corrupt federal officials through providing things of value” and that it has “no logical relation to Mr. Ring’s motive in his interactions with federal officials.”
The response,
GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE UNCHARGED MISCONDUCT refers to the January 30, 2009 letter:
On January 30, 2009, the Government identified acts that it considered either intrinsic to the charged counts or admissible pursuant to Rule 404(b). (Dkt. 53 Exh. 1). Broadly categorized, the acts that Defendant now seeks to exclude are allegations of other contact with public officials (Paragraphs 1-5, 7 and 9), payments to Defendant (Paragraphs 10 and 11), and fraudulent billing allegations (Introduction).
According to this statement the government will be able to present allegations of other contact with public officials, which references the defendant's involvement with a Superbowl trip in 2001 (paragraphs 1-5, 7 and 9).
However, the government will not be able to present evidence outlines in paragraphs 11-12 (emphasis added):
Defendant argues that the payments to him, described in paragraphs 10 and 11, should be excluded. The payments, however, are intrinsic to the obstruction counts charged in Counts Nine and Ten. During the interviews that are the subjects of Counts Nine and Ten, Defendant was asked about the payments in Paragraphs 10 and 11, and Defendant’s lie about the $135,000 payment is one of the lies that is the basis for the obstruction charges of Counts Nine and Ten. Defendant cannot credibly argue that these payments should be excluded.
It appears that the judge excluded the paragraphs that relate to the severed counts, Counts IX and X. (See below - judge's order 5.) Perhaps this evidence will be allowed in another trial that deals with the severed counts?
The introductory paragraph addressed fraudulent billing records. From the Government's Opposition to Defendant's Motion to Exclude Uncharged Conduct:
Billing Allegations (Introductory Paragraph January 30, 2009 letter) In addition to the items discussed supra, the Government noted in its January 30, 2009 letter that it seeks to introduce evidence pursuant to Rule 404(b) that Kevin A. Ring, and his lobbying associates frequently fraudulently billed their clients and employers. For example, Mr. Ring and others would inaccurately record the number of hours billed to a client in order to show the client or the lobbying firm that more or different work had been done than had actually been performed. In addition, Mr. Ring and others would request reimbursement from their employers for items that were not related to professional activities, but rather were personal in nature, all while knowing that some of those costs would be passed on to their clients.
The government's document revealed that Ring was a crook and schemer, defrauding clients and bribing staffers:
For example, one of the individuals named in Paragraph 2 of the January 30, 2009 letter is a Senate staffer who assisted Defendant and others on numerous occasions. After the Senate staffer assisted the co-conspirators by taking official action on or about June 24, 2002, Abramoff emailed the Defendant and another co-conspirator, Todd Boulanger, “Awesome. Totally incredible. What can we do for [Senate staffer], or can I assume he gets everything he wants.”
However, later on October 21, 2003, once the same staffer failed to perform an official action that Defendant desired, Defendant wrote to Abramoff and Boulanger “How did [Senate staffer] let this thing close. No more free drinks.” In short, how Defendant’s and his co-conspirators discussions about providing things of value to other public officials is illustrative of the corrupt agreement and Defendant’s corrupt intent, and therefore intrinsic to the charged crimes.
The document discusses how
Jack Abramoff,
Michael Scanlon,
Robert Coughlin and others conspired with Ring. It details how the lobbyists worked to cheat the New Mexico and the Mississippi Indian Tribes.
The Government anticipates that the evidence regarding Defendant’s March 10, 2004 meeting with the New Mexico Tribe will demonstrate that Defendant was responding to concerns about Scanlon’s receipt of $2.75 million and the investigations being conducted by the Senate. The evidence will show that during this meeting Defendant did not acknowledge that he had received $135,000 from Scanlon and in fact attempted to distance himself from the financial relationships of Scanlon and Abramoff.
And then there's this:
Defendant’s lobbying successes were not the result only of the many hours of lobbying that he and other lobbyists billed to their clients, but, in part, resulted from the relationships built by Defendant and others corrupting public officials with things of value...
...While Defendant was an intelligent lobbyist who understood legislation and political strategy, he also took short cuts, some illegal, to achieve his lobbying goals. He developed contacts among public officials, some legitimate and some illegitimate, that he used to seek official action benefiting his clients.
This document also shows that the government may go after Ring's old boss, former Rep. John Doolittle (R-Abramoff) who is identified in documents as Rep. 5, and his wife Julie. Several footnotes discuss the Rep. Doolittle and his wife, Julie:
Similarly, Defendant’s knowledge of how Abramoff and Scanlon defrauded other clients, for example the Mississippi Tribe, goes in part to explain the motivation of why he took corrupt actions to achieve the client’s lobbying goals - including the jail grant from the Department of Justice. His knowledge that the client whose funds were used to make the payments to the wife of Representative #5 was also involved with Abramoff and Scanlon could have contributed to his motive to disavow any role in arranging the job for the wife of Representative #5 because further investigation into the misuse of client funds could have identified the corrupt acts Defendant took with respect to the office of Representative #5.
On or about that same day, defendant RING responded to an email from Representative 5 entitled, “What did you think of the article,” by writing, “Not good, but fair and truthful. Lots of FBI talk, too. I am tainted by knowing the truth.” Also on or about that same day, defendant RING emailed another person, “I know more than article and the truth is worse.”
It appears that the evidence noted in the paragraphs in the January 30 2009 letter that make reference to the Doolittles will be allowed.
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(5) Defendant's Motion to Sever Counts: GRANTED IN PART AND DENIED IN PART
The judge ruled that Counts IX and X, (Obstruction of Justice) "with the exception of the allegations relating to the defendant's statements to counsel relating to Representative 5's wife, as prejudicial and not properly joined under Federal Rules of Criminal Procedure 8(a) and 14. The court also strikes paragraphs 27 - 29 of the indictment."
Again, Representative five is former California Rep. John Doolittle (R-Abramoff), and Julie Doolittle is his wife.
The mentioned paragraphs from the
Indictment deal with the alleged deal between Ring, Abramoff and Scanlon to defraud the New Mexico tribe:
27. Defendant RING and his coconspirators used the growing success of their lobbying practice, which had been built in part by corrupt means, to retain existing clients and attract future clients. As part of their marketing efforts, defendant RING and his coconspirators persuaded the New Mexico tribe that the hiring of Scanlon to perform certain grassroots and public-relations services was critical to achieve the New Mexico tribe's lobbying goals and objectives.
28. Abramoff and Scanlon had a preexisting profit-sharing relationship. Defendant RING, Abramoff, and Scanlon agreed and understood that defendant RING would receive approximately five percent of the total revenues generated by Scanlon from the New Mexico tribe. Defendant RING, Abramoff, and Scanlon did not disclose to the New Mexico tribe any of the payments by Scanlon to defendant RING or Abramoff.
29. Abramoff used funds derived from his lobbying practice and the Scanlon payments in part to finance the scheme to defraud. This included, but was not limited to, the things of values provided to public officials as well as bonuses, payments, and other financial benefits provided to defendant RING and other coconspirators.
In the
MOTION TO SEVER, Ring's attorneys asked the Court to sever Counts Nine and Ten, which are based upon the Defendant’s statements to lawyers, Hank Schuelke and William Shields, who were conducting an investigation into the lobbying practices of Jack Abramoff.
The Government opposed the motion because the counts are "properly joined and and severance would prejudice the Government and unnecessarily waste judicial resources by requiring the Government to introduce the same evidence at two separate trials." They further stated that the Defendant's right to a fair trial was not prejudiced by the joinder of Counts Nine and Ten.
The
GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION FOR SEVERANCE got into even more questionable activity of Governor Fitial's good "friends", the Doolittles:
Of specific importance, Schuelke and Shields inquired about the use of client funds to fund the job for the wife of Representative # 5. The Government anticipates that evidence at trial will show that in these interviews, Defendant falsely denied that he knew about the job for the wife of Representative # 5, and only admitted any involvement after being confronted with emails demonstrating that he had actually been the primary intermediary between Abramoff and Representative # 5. Indeed, the Government anticipates that the evidence will show that in the midst of the initial discussions about a job for the wife of Representative # 5 in 2000, Defendant reported to Abramoff that he had heard that Representative # 5 felt like a “subsidiary” of Defendant’s law and lobbying firm.
The evidence will also show that the wife of Representative # 5 was eventually paid over $96,000 for little or no work at the same time that Defendant and Abramoff were asking Representative # 5 and his staff to perform numerous official acts that benefited their clients.
Defendant’s statements during the interviews with Schuelke and Shields about his knowledge of the job for the wife of Representative # 5 are, in part, the subject of Counts Nine and Ten - obstruction of justice.
There's this:
Defendant cannot credibly claim that his obstruction related to payments for the wife of Representative # 5 are not properly joined to Counts One and Count Eight pursuant to Fed. R. Crim. 8(a). Throughout Count One, the job for the wife of Representative # 5 is explicitly discussed. See Ind. Count One, ¶¶ 70, 78, 84, 88, 90, 117, 123, 124, 125, 131 and 145. Indeed, the deposit of a $5000 check by the wife of Representative # 5 predicates the substantive honest services wire fraud charge in Count Eight. The obstructive conduct related to the wife of Representative # 5 is properly joined to the other charges as part of the same scheme or plan.
And this:
For example, the Government anticipates introducing Defendant’s admissions to Schuelke and Shields regarding a 4/29/02 event for Representative # 5's staff at Signatures Restaurant, which was owned by Abramoff. Defendant claimed $2000 worth of expenses and billed the charges to seven separate clients. Defendant acknowledged that the costs of that single event violated the ethical rules of Congress, and that the pubic officials could have been “in deep sh*t” as a result of that event.
During the interviews, Defendant also acknowledged that he was aware that the wife of Representative # 5 was actually paid from funds diverted from another tribal client of Abramoff’s.
The judge also stated in her order that the government must notify the Court on or before July 1, 2009, if it intends to proceed with those parts of Counts IX and X which have not been severed."
Today the government filed
GOVERNMENT’S UNOPPOSED MOTION TO SEVER COUNTS IX AND X, which reads:
In light of the Court’s severance from the indictment of charging language concerning private honest services fraud, the government respectfully asks the Court to sever Counts IX and X in their entirety. The government will try Counts I through VIII in September. Ring, through counsel, does not oppose this motion. A proposed order is attached.
There is a pattern in the order that revolves around the severing of counts IX and X. Evidence relating to the counts was not allowed as seen in the judge's order (4) Defendant's Motion for 404(b) Evidence. Will the government charge Ring with counts IX and X in a separate indictment and conduct two trials? It does appear that the government plans to issue a separate indictment and have two trials because in the
GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION FOR SEVERANCE the government stated (emphasis added):
The Court should deny Defendant’s motion because (I) the counts are properly joined pursuant to Fed. R. Crim. P. 8(a) and severance would prejudice the Government and unnecessarily waste judicial resources by requiring the Government to introduce the same evidence at two separate trials,and (II) Defendant failed to demonstrate a strong showing of prejudice pursuant to Rule 14.
Is it to the defendant's advantage to have two trials or to the government's advantage? I would guess it gives the government an extra chance to prove its case and the advantage of knowing the defense team's strategy from what takes place in the first trial.
Additionally, the order severed the counts "with the exception of the allegations relating to the defendant's statements to counsel relating to Representative 5's wife." Throughout the order evidence related to the Doolittles stands. Still the biggest question remains when will the Doolittles be indicted?
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(6) Defendant's Motion to Suppress Tangible Evidence regarding items seized from the home is GRANTED IN PART and DENIED IN PART
From the order:
The Court will not suppress any item seized pursuant to the search warrant that is responsive to the warrant as interpreted by the Court and counsel during argument (i.e., the item must be a "draft", outline, or notes of any books, memoirs, biographies, or any other compilation relating to [defendant]'s employment with Jack Abramoff' (book drafts") or it must be source material for these book drafts (but it not sufficient that the item "could be" source material)).
In the
MOTION TO SUPPRESS TANGIBLE EVIDENCE AND INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES AND REQUEST FOR EVIDENTIARY HEARING, Ring requests that the Court suppress evidence that was obtained during the May 28, 2008 search of his home. This search was conducted under a warrant. Ring claims that the evidence "was so facially overboard as to violate the Fourth Amendment's particularity requirement and render any reliance on the warrant objectively unreasonable."
The attachment includes the copy of the search warrant and a list of items that were seized including 4 computers, note pads, books, emails, internet printouts, legislative documents, book draft printouts, personal notes, "notes from cong. Doolittle", email from Josephine Hearn (covered lobbying and later House Democrats for The Hill), letter from Paul Erickson (Abramoff's friend from the College Republicans.), and manuscript for book.
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Additionally, the judge's order gave instructions on filing of the preliminary jury instructions and a joint jury questionnaire, file the witness and exhibits lists, set a status conference for August 13, 2009 and jury selection will begin September 8, 2009.
Please visit the
Anti Corruption Republicanfor further commentary!
July 4, 2009
