United States v. Kevin Ring

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2012 Decided January 25, 2013

No. 11-3100

UNITED STATES OF AMERICA,

APPELLEE

v.

KEVIN A. RING,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cr-00274-1)

Timothy P. O’Toole, appointed by the court, argued the

cause and filed the briefs for appellant.

Paul F. Enzinna, Jonathan Hacker, and Allen Dickerson

were on the brief for amici curiae National Association of

Criminal Defense Lawyers, Inc., et al. in support of appellant.

John-Alex Romano, Attorney, U.S. Department of

Justice, argued the cause for appellee. With him on the brief

were Lanny A. Breuer, Assistant Attorney General, and

Nathaniel B. Edmonds, Trial Attorney. Elizabeth Trosman,

Assistant U.S. Attorney, entered an appearance.

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Before: TATEL, BROWN, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In 2004, a Department of Justice

investigation into Jack Abramoff’s lobbying team unearthed

evidence of corruption so extensive that it ultimately

implicated more than twenty public officials, staffers, and

lobbyists. Appellant Kevin Ring, once a prominent

Washington lobbyist, was one of them. Exposing the dark

underbelly of a profession that has long played an important

role in American politics, this case probes the boundary

between legal lobbying and criminal conduct. Ring was

convicted of honest-services fraud, paying an illegal gratuity,

and conspiracy relating to his provision of meals, tickets, and

other gifts to public officials. On appeal, Ring argues that the

district court’s instructions on the honest-services counts

misstated the law, that the jury lacked sufficient evidence to

find that an “official act” underlay the illegal-gratuity charge,

and that the district court ran afoul of Federal Rule of

Evidence 403 and the First Amendment when it admitted

evidence of his lawful campaign contributions. Although each

of these arguments is weighty, we ultimately affirm Ring’s

conviction.

I.

Lobbying has been integral to the American political

system since its very inception. See 1 Robert C. Byrd, The

Senate 1789–1989: Addresses on the History of the United

States Senate 491–92 (Mary Sharon Hall, ed., 1988). As some

have put it more cynically, “[l]obbyists have besieged the

U.S. government for as long as it has had lobbies.” Peter

Grier, “The Lobbyist Through History: Villainy and Virtue,”

The Christian Science Monitor, Sept. 28, 2009,

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http://www.csmonitor.com/USA/Politics/2009/0928/the-

lobbyist-through-history-villainy-and-virtue. By 2008, the

year Ring was indicted, corporations, unions, and other

organizations employed more than 14,000 registered

Washington lobbyists and spent more than $3 billion lobbying

Congress and federal agencies. See Lobbying Database,

Center for Responsive Politics,

http://www.opensecrets.org/lobby/index.php (compiling data

from the Senate Office of Public Records).

The interaction between lobbyists and public officials

produces important benefits for our representative form of

government. Lobbyists serve as a line of communication

between citizens and their representatives, safeguard minority

interests, and help ensure that elected officials have the

information necessary to evaluate proposed legislation.

Indeed, Senator Robert Byrd once suggested that Congress

“could not adequately consider [its] workload without them.”

1 Byrd, The Senate 1789–1989, at 508.

In order to more effectively communicate their clients’

policy goals, lobbyists often seek to cultivate personal

relationships with public officials. This involves not only

making campaign contributions, but sometimes also hosting

events or providing gifts of value such as drinks, meals, and

tickets to sporting events and concerts. Such practices have a

long and storied history of use—and misuse. During the very

First Congress, Pennsylvania Senator William Maclay

complained that “New York merchants employed ‘treats,

dinners, attentions’ to delay passage of a tariff bill.” Id. at

492. Sixty years later, lobbyists working to pass a bill that

would benefit munitions magnate Samuel Colt “stage[d]

lavish entertainments for wavering senators.” Id. at 493. Then,

in the 1870s, congressmen came to rely on railroad lobbyists

for free travel. See id. at 494. Indeed, one railroad tycoon

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complained that he was “averag[ing] six letters per day from

Senators and Members of Congress asking for passes over the

road.” Id.

The ubiquity of these practices perhaps explains why in

Steven Spielberg’s film Lincoln a lobbyist declared, “It is not

illegal to bribe congressmen—they’d starve otherwise.”

Although public officials certainly benefit from lobbyists’

campaign contributions and other gifts, that quip, of course, is

not precisely accurate. To be sure, bribing congressmen is

illegal, but gifts given by lobbyists to curry political favor do

not always amount to bribes. At least prior to legislation

enacted in the wake of the Abramoff scandal, see Honest

Leadership and Open Government Act of 2007, Pub. L. No.

110-81, 121 Stat. 735, there was nothing criminal about

giving gifts to an official in an attempt “to build a reservoir of

goodwill that might ultimately affect one or more of a

multitude of unspecified acts, now and in the future.” United

States v. Sun-Diamond Growers of California, 526 U.S. 398,

405 (1999). The line between legal lobbying and criminal

conduct is crossed, however, when a gift possesses a

particular link to official acts. See id. at 405–08 (“link” or

“connection” between gift and official act distinguishes

lawful from unlawful gifts). Specifically, when the gift is

given with an “intent ‘to influence’ an official act” by way of

a corrupt exchange—i.e., a quid pro quo—a defendant has

committed bribery or honest-services fraud. See id. at 404

(quoting 18 U.S.C. § 201(b)(1)). When a gift is intended as a

“reward” for a specific past or future official act, a defendant

has paid an illegal gratuity. See id. at 405; 18 U.S.C.

§ 201(c)(1)(A). The distinction between legal lobbying and

criminal conduct may be subtle, but, as this case

demonstrates, it spells the difference between honest politics

and criminal corruption.

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Appellant Kevin Ring, after stints working for a member

of the U.S. House of Representatives, a U.S. Senate

committee, and the House Republican caucus, joined Jack

Abramoff’s lobbying team in 1999. Until its fall from grace,

Abramoff’s group maintained a successful and wide-ranging

lobbying practice in Washington, D.C. Playing a role some

characterized as the team’s “chief operating officer,” Ring

managed some of Abramoff’s most important clients and

maintained close relationships with several public officials.

Ring and the other Abramoff lobbyists relied heavily on

campaign contributions to maintain relationships with elected

officials and promote their clients’ political interests. But it

was Ring’s other lobbying tactics that got him in trouble.

These tactics chiefly included treating congressional and

executive branch officials to dinners, drinks, travel, concerts,

and sporting events. Ring referred to officials with whom he

had the closest ties and with whom his lobbying efforts were

most successful as his “champions.” As regular beneficiaries

of Ring’s largesse, these “champions” often took actions that

were favorable to Ring’s clients.

In 2004, a targeted federal investigation of a kickback

scheme masterminded by Abramoff and another of his

associates, Michael Scanlon, spawned the broader

investigation that ultimately ensnared Ring. Discovering that

meals, tickets, and travel Ring provided to public officials

were impermissibly linked to official acts that benefitted Ring

and his clients, the government indicted him on six counts of

honest-services fraud, one count of paying an illegal gratuity,

and one count of conspiracy to pay illegal gratuities and

commit honest-services fraud. After his first trial resulted in a

hung jury, the district court postponed retrial to await the

Supreme Court’s decision in Skilling v. United States, 130 S.

Ct. 2896 (2010), its landmark honest-services case. Then,

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following a two-week trial, a jury convicted Ring on three of

the six honest-services counts, the illegal gratuity count, and

the conspiracy count. Ring was sentenced to twenty months’

incarceration, but the district court, observing that his case

“presented challenging and novel questions of law,” stayed

that sentence pending appeal.

Ring now challenges the district court’s instructions on

the honest-services counts, the sufficiency of the evidence on

the illegal-gratuity count, and the admission of evidence of his

lawful campaign contributions. We consider each argument in

turn.

II.

The honest-services fraud statute, 18 U.S.C. § 1346,

extends the general mail- and wire-fraud statute to include not

only schemes to defraud another of money or property, but

also “scheme[s] or artifice[s] to deprive another of the

intangible right of honest services.” In Skilling, the Supreme

Court adopted a limiting construction of the statute in order to

save it from unconstitutional vagueness. Specifically, the

Court held that the honest-services fraud statute “covers only

bribery and kickback schemes.” 130 S. Ct. at 2907. Consistent

with Skilling, the government prosecuted Ring on a bribery

theory of honest-services fraud. As both parties agree, this

means that the government had to prove the major elements of

bribery in order to convict Ring of honest-services fraud. As

relevant to the issue here, the government had to show that

Ring gave gifts with an “intent ‘to influence’ an official act”

by way of a corrupt quid pro quo. See Sun-Diamond, 526 U.S.

at 404 (quoting 18 U.S.C. § 201(b)(1)).

Ring argues that the district court’s instructions on the

quid pro quo element were flawed in three respects.

Specifically, he contends that the instructions failed to make

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clear (1) that an explicit quid pro quo was required, (2) that

the official must agree to the exchange, and (3) that, at the

very least, a corrupt agreement must be offered. Whether the

district court properly instructed the jury is “a question of law

that we review de novo.” United States v. Orenuga, 430 F.3d

1158, 1166 (D.C. Cir. 2005). In reviewing challenges to

instructions, our task is to “ ‘determine whether, taken as a

whole, [the instructions] accurately state the governing law.’ ”

Id. (quoting United States v. DeFries, 129 F.3d 1293, 1303

(D.C. Cir. 1997) (per curiam)) (alteration in original). After

considering each of Ring’s three challenges—the explicitness

argument, the agreement argument, and the offer argument—

we conclude that the district court’s careful instructions

correctly stated the law of honest-services bribery.

A.

In McCormick v. United States, 500 U.S. 257 (1991), the

case on which Ring primarily relies, the Supreme Court held

that making campaign contributions can constitute criminal

extortion under the Hobbs Act only when made pursuant to an

explicit quid pro quo agreement. See id. at 271–74.

McCormick expressly declined to decide whether this

requirement “exists in other contexts, such as when an elected

official receives gifts, meals, travel expenses, or other items

of value.” Id. at 274 n.10. Ring urges us to resolve the

question McCormick left open and hold that a lobbyist’s

provision of other “things of value” to public officials cannot

constitute honest-services bribery absent an explicit quid pro

quo agreement. Like contributing to political campaigns, Ring

maintains, lobbying implicates core First Amendment

rights—specifically, the right to petition the government.

Criminalizing implicit agreements to exchange things of value

for official acts, he further contends, would result in confused

juries convicting on the basis of constitutionally protected

conduct and chill First Amendment activity.

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The McCormick Court failed to clarify what it meant by

“explicit,” and subsequent courts have struggled to pin down

the definition of an explicit quid pro quo in various contexts.

See United States v. McGregor, No. 10-cr-186, 2012 WL

3010971 at *4–10 (M.D. Ala. 2012) (collecting cases and

navigating various courts’ pronouncements about the meaning

of “explicit”). It is thus understandable that Ring fails to

explain exactly what the addition of an explicitness

requirement would mean in practice. In any event, we think it

clear that no such instruction is required outside the campaign

contribution context.

As an initial matter, we assume without deciding a

proposition that Ring appears to take for granted: that

McCormick, which concerned extortion, extends to honest-

services fraud. Cf. United States v. Siegelman, 640 F.3d 1159,

1172–74 & n.2 (11th Cir. 2011) (assuming without deciding

that McCormick applies to federal-funds bribery and honest-

services fraud). But even assuming as much, we believe that

campaign contributions can be distinguished from other

things of value. See, e.g., United States v. Ganim, 510 F.3d

134, 142–44 (2d Cir. 2007) (explaining that McCormick

requires “proof of an express promise” in the contribution

context, but that an “agreement may be implied” in “the non-

campaign context”). For one thing, whereas soliciting

campaign contributions may be practically “unavoidable so

long as election campaigns are financed by private . . .

expenditures,” McCormick, 500 U.S. at 272, accepting free

dinners is certainly not. Moreover, although providing

information, commenting on proposed legislation, and other

lobbying activities implicate First Amendment speech and

petition rights, see Liberty Lobby, Inc. v. Pearson, 390 F.2d

489, 491 (D.C. Cir. 1967) (“[E]very person or group

engaged . . . in trying to persuade Congressional action is

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exercising the First Amendment right of petition.”), the First

Amendment interest in giving hockey tickets to public

officials is, at least compared to the interest in contributing to

political campaigns, de minimis. Accordingly, to the extent

concerns about criminalizing politically necessary activity or

chilling constitutionally protected conduct justify imposing a

higher bar for criminalizing campaign contributions, such

concerns carry significantly less weight with respect to other

things of value.

B.

Having rejected Ring’s argument that an explicit quid pro

quo is required outside the contribution context, we next

address his contention that the district court nonetheless erred

by instructing the jury that “[i]t [was] not necessary for the

government to prove that . . . the public official actually

accepted the thing of value or agreed to perform the official

act or participated in the scheme or artifice to defraud.” That

the official must actually enter into a corrupt agreement, Ring

maintains, flows from the Supreme Court’s admonition that

bribery requires “a quid pro quo—a specific intent to give or

receive something of value in exchange for an official act,”

Sun-Diamond, 526 U.S. at 404–05, from the need to

distinguish bribery from illegal gratuity, and from our

decision in United States v. Dean, 629 F.3d 257 (D.C. Cir.

2011).

Ring’s position is foreclosed by the text and structure of

the federal bribery statute, which both parties agree serves as

the benchmark for honest-services bribery, as well as by

binding precedent. The bribery statute expressly criminalizes

a mere “offer” of something of value with the intent to

influence an official act. 18 U.S.C. § 201(b)(1). That the

official need not accept that offer for the act of bribery to be

complete is evident from the structure of the statute, which

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defines two separate crimes: the act of offering a bribe and the

act of soliciting or accepting a bribe. See id. § 201(b)(1)–(2).

Confirming this interpretation, the Supreme Court held in

United States v. Brewster, 408 U.S. 501 (1972), that, with

respect to a bribe payee, the “acceptance of the bribe is the

violation of the statute.” Id. at 526. The parallel proposition in

the context of a bribe payor is straightforward: the offer of the

bribe is the violation of the statute. Indeed, we have made

clear that the quid pro quo need not be “fully executed for the

act to be considered a bribe.” Orenuga, 430 F.3d at 1166.

Because bribery does not require the official to agree to

or actually complete a corrupt exchange, neither does honest-

services fraud by bribery. Although we need look no further

than black-letter bribery law to reach this conclusion, the fact

that the wire fraud statute “ ‘punishes the scheme, not its

success,’ ” Pasquantino v. United States, 544 U.S. 349, 371

(2005) (quoting United States v. Pierce, 224 F.3d 158, 166

(2d Cir. 2000)), lends further support to our conclusion that 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, though the offerer of a bribe is

guilty of honest-services fraud, his attempted target may be

entirely innocent. See United States v. Anderson, 509 F.2d

312, 332 (D.C. Cir. 1974) (bribe payer’s culpability may

differ from official’s culpability).

Contrary to Ring’s argument, moreover, the proposition

that the official need not agree to accept a proffered bribe

hardly renders bribery, or honest-services fraud by bribery,

indistinguishable from illegal gratuity, which criminalizes

gifts given “for or because of,” 18 U.S.C. § 201(c)—as

opposed to with an intent “to influence,” id. § 201(b)—an

official act. Indeed, the Supreme Court directly answered this

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objection in United States v. Sun-Diamond Growers of

California, explaining that “[t]he distinguishing feature of

each crime is its intent element,” not any action taken by

another party. 526 U.S. at 404. Specifically:

Bribery requires intent “to influence” an official act

or “to be influenced” in an official act, while illegal

gratuity requires only that the gratuity be given or

accepted “for or because of” an official act. In other

words, for bribery there must be a quid pro quo—a

specific intent to give or receive something of value

in exchange for an official act. An illegal gratuity,

on the other hand, may constitute merely a reward

for some future act that the public official will take

(and may already have determined to take), or for a

past act that he has already taken.

Id. at 404–05 (quoting 18 U.S.C. §§ 201(b)–(c)). Thus, it is

the “specific intent to give or receive something of value in

exchange for an official act,” id. (emphasis omitted), an

element on which the jury in this case was carefully

instructed, that preserves the distinction between bribery and

gratuity.

Nothing in Dean requires a different result. There, we

overturned a conviction for solicitation of a bribe, holding that

bribery “necessitates an agreement between the public official

and the other party that the official will perform an official act

in return for a personal benefit to the official.” 629 F.3d at

259. Leaning heavily on the word “agreement,” Ring

maintains that Dean stands for the proposition that an official

must “agree” to accept a bribe for the requisite quid pro quo

to occur. But in context it is clear that “agreement” is used as

a synonym for specific intent. When, as in Dean, a public

official is charged with soliciting a bribe, the evidence must

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show that the official conveyed an intent to perform official

acts in exchange for personal benefit. Accordingly, the

element absent in Dean is precisely what is present here: an

intent to offer or solicit an exchange of official action for

personal gain.

C.

Finally, we turn to Ring’s more nuanced argument that

even if an official need not agree to a corrupt exchange, the

payor defendant must at least intend to offer such an

exchange. This argument, with which the government appears

to agree, see Oral Arg. Tr. 25:19–26:11; Appellee Br. 29, was

initially proffered by amici and adopted as a “fallback” by

Ring. See Oral Arg. Tr. 13:5. But we agree with the

government that the district court’s instructions faithfully

capture this requirement. After explaining the quid pro quo

element, the instructions stated that “[t]he defendant must

intend that the public official realize or know that he or she is

expected, as a result of receiving this thing of value, to

exercise particular kinds of influence or decision-making to

benefit the giver as specific opportunities to do so arise. . . .

[T]his quid pro quo,” the instructions continued, “must

include a showing that the things of value either were

conditioned upon the performance of an official act or pattern

of acts or upon the recipient’s express or implied agreement to

act favorably to the donor when necessary.”

These careful instructions touched all the necessary

bases, requiring a specific intent to influence official acts, an

intent that the official “realize or know” that the corrupt

exchange is being proposed, and a showing that the gifts

“were conditioned upon” the official’s act or agreement. They

also comport with instructions approved by other circuits. In

United States v. Uricuoli, 613 F.3d 11 (1st Cir. 2010), for

instance, the First Circuit upheld instructions that required the

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government to prove that the defendant “intended the

payment to cause [the official] to alter his official acts,” id. at

15, and that “the payments to [the official] were made with

the specific purpose of influencing his actions on official

matters,” id. at 18.

To be sure, the district court focused more on Ring’s

intent than on his conduct. But that focus mirrors the Supreme

Court’s in Sun-Diamond, which defined the quid pro quo

element not in terms of a defendant’s conduct, but rather in

terms of a defendant’s “specific intent to give or receive

something of value in exchange for an official act.” 526 U.S.

at 404–05 (emphasis added and other emphasis omitted). In

the end, it is this mens rea element that distinguishes criminal

corruption from commonplace political and business

activities.

III.

Ring’s next argument takes us from the honest-services

fraud charges to the sole illegal-gratuity count. As we have

already explained, the illegal-gratuity statute makes it

unlawful to “give[ ], offer[ ], or promise[ ] anything of value

to any public official . . . for or because of any official act.”

18 U.S.C. § 201(c). The statute defines “official act” as “any

decision or action on any question, matter, cause, suit,

proceeding or controversy, which may at any time be

pending, or which may by law be brought before any public

official, in such official’s official capacity, or in such

official’s place of trust or profit.” Id. § 201(a)(3). This Circuit

treats the question whether an action constitutes an “official

act” as one of “sufficiency of the evidence.” See Valdes v.

United States, 475 F.3d 1319, 1322 (D.C. Cir. 2007) (en

banc).

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Ring was charged with paying an illegal gratuity when he

gave Washington Wizards tickets to an attorney at the Justice

Department’s Office of Intergovernmental Affairs as a reward

for helping to expedite review of a visa application for a

foreign student seeking to attend a private school owned by

Abramoff. Upon receiving a request for assistance from Ring,

the attorney forwarded Ring’s email to another Justice

Department official who recommended he contact someone at

the U.S. Immigration and Naturalization Service (“INS”).

Following this advice, the attorney called an INS official’s

secretary and urged her to expedite the application. He then

forwarded Ring’s email to the secretary along with a personal

note:

Thank you for looking into this. I do not know if

anything can be done but I said I would look into it.

If, for any reason, nothing can be done, please email

me so I can pass that along. Thank you very much

for you[r] assistance.

The secretary, in turn, passed the email along to five different

INS officials in an effort to, as she testified, “make sure . . .

action was being taken to answer the request” because it had

come from “higher headquarters” at the Department of

Justice. Within a single business day, INS agreed to expedite

the application. After getting the news that the attorney’s

efforts had been successful, Ring sent Abramoff an email

reporting that the attorney had “[h]elped on the school and

[was] now looking for tickets” to two Washington Wizards

basketball games. Abramoff promptly agreed, and the

attorney attended the games on Abramoff’s dime.

By convicting on the illegal-gratuity count, the jury

found—and Ring does not now dispute—that he provided the

tickets “for or because of” the attorney’s assistance with the

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visa application. Instead, Ring argues that the government

failed to offer sufficient evidence that the attorney took an

“official action” within the meaning of the illegal-gratuity

statute.

In Valdes v. United States, this Court, sitting en banc,

considered the scope of “official act” in the illegal-gratuity

context. There, a police officer accepted money from an

undercover agent and, at the agent’s request, conducted

searches of license-plate and warrant databases. See 475 F.3d

at 1321–22. Emphasizing that the illegal-gratuity statute is

concerned not with purely informational inquiries, but rather

with “inappropriate influence on decisions that the

government actually makes,” id. at 1325, we held that the jury

lacked sufficient evidence to find that the officer’s searches

constituted “official acts,” id. at 1322–25. In so doing, we

listed some examples of acts that “the statute easily covers: a

clerk’s manufacture of official government approval of a

Supplemental Security Income benefit, as in United States v.

Parker, 133 F.3d 322 (5th Cir. 1998); a congressman’s use of

his office to secure Navy contracts for a ship repair firm, as in

United States v. Biaggi, 853 F.2d 89 (2d Cir. 1988); and a

Veterans’ Bureau official’s activity securing a favorable

outcome on a disability claim, as in Beach v. United States, 19

F.2d 739 (8th Cir. 1927) (based on a predecessor statute).”

Valdes, 475 F.3d at 1325. We further noted that “official acts”

include acts that have been established as part of an official’s

position by virtue of past practice or custom. See id. at 1323.

Ring maintains that, like in Valdes, this is a case in which

no reasonable juror could have found that the attorney’s

forwarding of the email constituted an “official act.” Because

the attorney lacked decisionmaking authority with respect to

visa applications, Ring argues that the attorney’s intercession

was not a “decision or action” on a “question, matter, . . . [or]

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proceeding” that was or ever would be “pending” or

“brought” before him. 18 U.S.C. § 201(a)(3). Instead,

according to Ring, the attorney’s act of forwarding the email

to the INS secretary amounts to nothing more than an

informational inquiry, analogous to the database search in

Valdes or a receptionist’s transfer of a phone call.

Considering the evidence in the light most favorable to

the government, as we must, see Valdes, 475 F.3d at 1322, we

think it clear that a rational jury could have found that the

attorney’s efforts to expedite the visa application qualified as

official action. The secretary who received the attorney’s

email testified that the Justice Department’s

Intergovernmental Affairs Office was part of INS’s “higher

headquarters” and was “responsible for . . . assisting other

agencies and other state and local governments if they ha[d]

an issue.” In other words, unlike attorneys in DOJ units who

litigate on behalf of agency clients, attorneys in the

Intergovernmental Affairs Office are responsible for reaching

across agency boundaries to get things done. And as the

secretary went on to explain, she felt unable to ignore the

attorney’s request because of the office he held. Ultimately,

the attorney’s swift success in procuring expedited review

spoke for itself.

Contrary to Ring’s contention, the attorney’s actions are

categorically different from those Valdes suggests fall outside

the scope of “official action.” Unlike the Valdes police

officer, the attorney was neither “moonlighting” nor making a

purely informational inquiry. See Valdes, 475 F.3d at 1324–

25. Rather, the attorney acted in his official capacity to

influence the visa application process, conduct better

analogized to an action Valdes explained was clearly within

the statute’s coverage: “a congressman’s use of his office to

secure Navy contracts for a ship repair firm.” Id. at 1325. To

17

be sure, the attorney himself lacked independent authority to

expedite visa applications. But Ring’s attempt to import a

requirement that the official in question have ultimate

decisionmaking authority into the definition of “official act”

has no statutory basis. Cf. United States v. Carson, 464 F.2d

424, 433–34 (2d Cir. 1972) (“There is no doubt that federal

bribery statutes have been construed to cover any situation in

which the advice or recommendation of a government

employee would be influential, irrespective of the employee’s

specific authority (or lack of same) to make a binding

decision.”). Indeed, the statute states that “official act[s]”

include both “decision[s]” and “action[s].” 18 U.S.C.

§ 201(a)(3).

IV.

This brings us to Ring’s final contention—that the district

court ran afoul of Federal Rule of Evidence 403 as well as the

First Amendment by permitting the jury to draw adverse

inferences from evidence about his campaign contributions.

Although the government never contended that any of Ring’s

campaign contributions were themselves unlawful, it

repeatedly introduced testimony about those contributions in

order to paint a fuller picture of his interactions with public

officials. It also used Ring’s contributions to demonstrate that

he viewed money as a means to his clients’ political ends. For

example, the government introduced an email in which Ring

asked Abramoff to make sure that a particular congressman

who had acted as “a good soldier” received “his fair share of

contributions.” And one witness testified that Ring had a

“running joke” in which he would hold up a client’s campaign

check and ask, “Hello quid. Where’s the pro quo?” Tr.

10/28/10 PM at 22:2–13.

The district court recognized that this sort of evidence

posed a close question under Federal Rule of Evidence 403,

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which provides that “[t]he court may exclude relevant

evidence if its probative value is substantially outweighed by

a danger of,” among other things, “unfair prejudice, confusing

the issues, [or] misleading the jury.” Finding on the one hand

that the contributions were “so intertwined and so integrally

part of what [Ring] did” and that contribution evidence helped

shed light on his modus operandi, and on the other that the

evidence was not especially prejudicial, the district court

ultimately admitted it. To avoid confusion and prejudice,

however, the district court repeatedly reminded the jury—

indeed, virtually every time campaign contribution evidence

was presented—that such contributions are legitimate

lobbying tools and that the jury must not consider the

lawfulness of Ring’s contributions in reaching its verdict. See,

e.g., Trial Tr. 10/25/10 AM at 22:7–24:7. Pressing the same

point, the district court’s final jury instructions emphasized

that “the propriety or legality of any campaign contributions

. . . [was] not before [the jury] and [the jury was] therefore

instructed not to consider campaign contributions . . . as part

of the illegal stream of benefits that Mr. Ring [was] charged

with providing to certain public officials.”

Although the district court viewed this question primarily

in Rule 403 terms, Ring’s challenge to the admission of this

evidence intertwines First Amendment– and Rule 403–based

lines of reasoning. To the extent Ring’s First Amendment

argument is distinct, it rests on the proposition that permitting

a jury to draw adverse inferences from constitutionally

protected activity violates a defendant’s First Amendment

rights. Although the First Amendment limits the

government’s authority to criminalize speech and other

protected activity, see, e.g., United States v. Stevens, 130 S.

Ct. 1577 (2010), the Supreme Court has made clear that the

Amendment simply “does not prohibit the evidentiary use of

speech to establish the elements of a crime or to prove motive

19

or intent.” Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993).

Nothing in McCormick—which is silent on the use of

campaign contributions as evidence of other criminal

activity—suggests that contributions are an exception to that

general rule.

Ring is left, then, with Rule 403 and the possibility that

the First Amendment, even if it imposes no independent bar

on the admission of campaign contribution evidence, plays

some role in the Rule 403 analysis. Critical to our resolution

of this issue, we review a trial judge’s application of Rule 403

for “abuse of discretion” because “we assume that the trial

judge generally is in the best position to balance the probative

value of the disputed evidence against the risks of prejudice

and confusion.” Henderson v. George Washington University,

449 F.3d 127, 133 (D.C. Cir. 2006). Although a trial court’s

discretion to admit evidence under Rule 403 is not

“unfettered,” appellate courts must be “extremely wary of

second-guessing the legitimate balancing of interests

undertaken by the trial judge.” Id.

Beginning with the plus side of the Rule 403 balance

sheet, we agree with the district court that the campaign-

contribution evidence had significant probative value.

Testimony about Ring’s lawful campaign contributions gave

jurors a window into the way in which lobbyists like Ring

gain influence with public officials. One witness explained

the role of campaign contributions in Abramoff’s lobbying

practices with a particularly striking metaphor:

Q: Did you ever lobby with campaign

contributions?

A: Yes.

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Q: How did you do that?

A: Campaign contributions are a little bit different

than, for lack of a better term, things of value. I

viewed campaign contributions as sort of the ante in

a poker game. It’s the price of being involved in the

game. We worked—we worked aggressively to

raise money and we liked to do it.

Q: What do you mean by that, you viewed

campaign contributions as the ante in a poker game?

A: Yeah, it’s a seat at the table. That’s all. That’s all

it is.

Trial Tr. 10/28/10 PM 21:9–20. In other words, under the

government’s theory of the case, campaign contributions gave

the lobbyists access to public officials. Without such

evidence, a jury might wonder why an official would sacrifice

his integrity for a few Wizards tickets. Perhaps even more

significantly, the contribution testimony amounted to strong

modus operandi evidence that demonstrated Ring’s

transactional relationship with officials and the manner in

which he pursued his clients’ political aims. That Ring

rewarded “good soldier[s]” with campaign contributions, for

example, perhaps suggests that he put other things of value to

similar use.

Turning to the other side of the Rule 403 ledger, we think

it similarly clear that the contribution evidence had a strong

tendency to prejudice, confuse, and mislead the jury. As the

Supreme Court explained in Old Chief v. United States, 519

U.S. 172 (1997), “[t]he term ‘unfair prejudice’ . . . speaks to

the capacity of some concededly relevant evidence to lure the

factfinder into declaring guilt on a ground different from

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proof specific to the offense charged.” Id. at 180. The

Committee Notes to Rule 403 explain, “ ‘[u]nfair prejudice’

within its context means an undue tendency to suggest

decision on an improper basis, commonly, though not

necessarily, an emotional one.” Advisory Committee’s Note,

Fed. Rule Evid. 403. Here, the government introduced the

jury to a group of lobbyists who “viewed campaign

contributions as . . . the ante in a poker game,” Trial Tr.

10/28/10 PM 21:13–14, and to a defendant who held

“$300,000 in checks” in his hand and joked, “Hello, quid.

Where’s the pro quo?” Id. at 22:6–24. The distasteful way in

which Ring spoke of campaign contributions—especially in

light of the heated national debate about the proper role of

money in politics—posed a significant risk of evoking

precisely the kind of negative emotional response that might

“lure the [jury] into declaring guilt on a ground different from

proof specific to the offense charged.” Old Chief, 519 U.S. at

180.

The evidence may have been even more confusing and

misleading than it was prejudicial. Asked to find whether

Ring engaged in a corrupt “quid pro quo” with respect to

meals and tickets, the jury was presented with testimony—

e.g., “Hello, quid. Where’s the pro quo?” Trial Tr. 10/28/10

PM 22:2–25—that Ring viewed contributions in precisely

those terms. Indeed, through its questioning the government

invited the jury to conflate the contribution evidence with

evidence about the things of value that were actually at issue.

After eliciting testimony about contributions, for example, the

prosecution asked this series of questions:

Q: In that conversation or at any other time, did

Kevin Ring tell you that he treated campaign

contributions any differently than he did the giving

of tickets to public officials?

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...

A: I don’t remember a conversation like that.

Q: What about campaign contributions and meals or

food, giving of meals or food to public officials?

...

Q: I’m asking whether or not Mr. Ring ever had any

conversations that he treated campaign

contributions differently than he treated the giving

of meals and tickets to public officials?

A: I don’t remember any conversations like that, no,

sir.

Q: What about the treatment of the giving of trips to

public officials?

A: Again, I don’t remember any conversations like

that.

Trial Tr. 10/27/2010 AM at 127:2–128:3.

Having laid out both sides of the Rule 403 balance sheet,

we come to the question whether the contributions’ status as

protected speech affects the analysis. For his part, Ring fails

to specify exactly what role constitutional considerations

should play and neglects to grapple with the consequences

and limitations of his position. But the strongest version of his

argument, we think, is that concerns about jury prejudice and

confusion should carry more weight in the context of core

First Amendment activity. Although there appears to be little

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support for such a holding, injecting the First Amendment

into the Rule 403 balance in this way would resonate with

First Amendment–specific “chilling” concerns—concerns that

are especially powerful where political speech is involved.

See, e.g., Brown v. Hartlage, 456 U.S. 45, 61 (1982). In this

case, however, we need not decide whether and precisely how

the First Amendment alters the Rule 403 analysis because,

even assuming First Amendment concerns justify placing a

thumb on the prejudice and confusion side of the scale, that

added weight fails to change the outcome of the balance.

Although Ring’s argument for excluding the evidence is

powerful, we are mindful that the question at this stage is not

whether we would have come to the same conclusion as the

district court in the first instance, but whether the district

court abused its discretion. In answering that question, we

think it significant that the district court repeatedly instructed

the jury that the campaign contributions were not illegal.

Although “curative instructions are no panacea,” Dallago v.

United States, 427 F.2d 546, 552 n.13 (D.C. Cir. 1969), the

fact that the instruction was repeated every time contribution

evidence arose—as opposed to being given only a single time

at the end of a trial throughout which jurors may have failed

to distinguish contribution evidence from other evidence—did

much to mitigate the potential for confusion and First

Amendment chilling, even if it could not have entirely

eliminated the potential for prejudice. Moreover, the

probative value of the contribution evidence and the extent to

which it was inexorably intertwined with other evidence

weighed heavily in favor of admission. In the end, we cannot

say that the district court abused its discretion by concluding

that the evidence’s probative value was not “substantially

outweighed” by its prejudicial tendencies. Fed. R. Evid. 403.

After all, Rule 403 “tilts . . . toward the admission of evidence

24

in close cases,” United States v. Moore, 732 F.2d 983, 989

(D.C. Cir. 1984), and this case is nothing if not close.

V.

For the foregoing reasons, we affirm.

So ordered.