IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v.

KEVIN A. RING

) ) ) ) ) ) ) ) ) )

No. 08-CR-274 (ESH)

MOTION TO SEVER COUNTS Kevin A. Ring, through undersigned counsel, respectfully moves this Court pursuant to Federal Rules of Criminal Procedure 8 and 14, and Federal Rule of Evidence 404(b) to sever counts nine and ten from the remaining counts in the indictment for the purpose of trial in the above-captioned matter. The grounds for this Motion are set forth in the accompanying Memorandum of Points and Authorities.

Respectfully Submitted,

/s/ Richard Hibey Richard A. Hibey (D.C. Bar #74823) Andrew T. Wise (D.C. Bar # 456865) Timothy P. O’Toole (D.C. Bar # 469800) MILLER & CHEVALIER CHARTERED 655 Fifteenth Street, N.W., Suite 900 Washington, DC 20005-5701 Tel.: (202) 626-5800 Fax: (202) 628-0858 Attorneys for Kevin A. Ring

Dated: May 29, 2009

966676.1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v.

KEVIN A. RING

) ) ) ) ) ) ) ) ) )

No. 08-CR-274 (ESH)

MEMORANDUM IN SUPPORT OF KEVIN A. RING’S MOTION TO SEVER COUNTS INTRODUCTION This is a case about whether Kevin Ring sought to corrupt several federal public officials whom he lobbied while working at two Washington, D.C. law firms. It is not a case about whether Mr. Ring defrauded his clients, his law partners, or any other private entity. There is no private honest services fraud charge against Mr. Ring. There is no allegation in the indictment that Mr. Ring breached a fiduciary duty to a client or to his firm. Counts One through Eight, covering 40 pages of a 45 page indictment allege conspiracy to commit honest services fraud and federal gratuities law violations, wire fraud through a public honest services theory, and a federal gratuities law violation arising out of Mr. Ring’s open and public lobbying of federal officials as a member of Jack Abramoff’s lobbying team at two Washington, D.C. law firms. As a practical matter, those allegations lack credibility unless the government can show that Mr. Ring acted dishonestly. The government’s vague concealment allegation -- that Mr. Ring sought to conceal his open and public entertainment of officials at local establishments by “at times” filing expense reports that concealed the true identity of the recipients of those things of value – is undercut by

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the circumstances of the entertainment and the actual content of Mr. Ring’s expense reports. So, to introduce the specter of dishonesty and bad character into the case, the government tacked two counts on to the end of the indictment alleging that Mr. Ring sought to obstruct justice by making false statements to outside legal counsel hired by one of those firms during an internal investigation into Mr. Abramoff’s lobbying practice. The statements, which Mr. Ring disavowed and corrected before they were communicated to any governmental entity, relate almost entirely to the billing of a firm client and the distribution of fees received from that client through an outside entity controlled by Michael Scanlon. The counts are flawed as a matter of law as set forth in Mr. Ring’s Motion to Dismiss. But even if the Court determines that those flaws do not warrant dismissal, it is clear that as a matter of evidentiary admissibility, evidence of Mr. Abramoff and Mr. Scanlon schemes to defraud a client, and Mr. Ring’s knowledge of, connection to, or benefit from those actions, bear no relation to the alleged scheme to commit public honest services fraud. The allegations are designed to backdoor allegations of bad character and dishonesty into the case to prejudice the jury against Mr. Ring. Count Nine and Ten of the indictment are improperly joined to the remainder of the indictment and should be striken from the indictment or severed for purposes of trial. ARGUMENT I.

JOINDER OF COUNTS NINE AND TEN WITH THE REMAINDER OF THE COUNTS IN THE INDICTMENT IS IMPROPER. Offenses may be joined in an indictment if they are (1) of the same or similar character,

(2) based on the same act or transaction, or (3) connected with or constitute parts of a common scheme or plan. Fed. R. Crim. P. 8(a). While Rule 8(a) has generally been construed liberally in favor of joinder, “it is not infinitely malleable: it cannot be stretched to cover offenses … which are discrete and dissimilar and which do not constitute parts of a common scheme or plan.”

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United States v. Richardson, 161 F.3d 728, 733-34 (D.C. Cir. 1998), see also United States v. Kaquatosh, 227 F. Supp. 2d 1045 (E.D. Wisc. 2002). “[I]n order for offenses discrete and dissimilar on their faces to be properly joined under Rule 8, there must be some logical relationship between them.” Richardson, 161 F.3d at 734, citing United States v. Perry, 731 F.2d 985, 990 (D.C. Cir. 1984). In Richardson, the D.C. Circuit rejected the government’s argument that the sequential, “but for” connection between a firearm possession charge and a threats charge based upon post-arrest statements to the arresting officer provided a sufficient connection. Id. Instead, it held that joinder is properly only where there is substantial overlap in evidence between two offenses such that combination of the offenses operates to “eliminate[] the need to prove substantially the same evidence twice over, thus realizing precisely the kind of economy envisaged by Rule 8(a).” Id., quoting Blunt v. United States, 404 F.2d 1283, 1288 (D.C. Cir. 1968). Here, the obstruction of justice offenses are not logically related to the remainder of the offenses charged in the indictment. Counts One through Eight of the indictment allege offenses arising out of Mr. Ring’s lobbying of federal officials. The relevant “fiduciary duties and responsibilities” articulated in paragraphs 18 and 19 of Count One speak only of public officials within the legislative and executive branch. The “conspiracy and its objects” as defined in paragraph 20 of Count One reference only actions toward public officials. The remainder of Count One details contacts between Mr. Abramoff, Mr. Ring, other lobbyists, and various public officials. Count Two is a gratuities charge arising out of alleged contact between Mr. Ring and Robert Coughlin, an employee of the Department of Justice. Counts Three through Eight alleged public honest services wire fraud based on acts allegedly involving Coughlin, John Albaugh, the Chief of Staff to a member of the U.S. House or Representatives, and the wife of another

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Representative. The counts bear no relation to any allegation that Mr. Ring defrauded a client of his law firm or a party to whom he owed a fiduciary duty. Indeed, in response to Mr. Ring’s Motion to Dismiss the Indictment, the government expressly disavowed any reliance upon a fiduciary duty owed by Mr. Ring to any party, and repeatedly argued that the indictment stated an offense solely focused on public officials. DE 41 at 7-10. In contrast, Counts Nine and Ten rest almost entirely on allegations that Mr. Ring misled outside legal counsel about the improper handling and distribution of the lobbying fees paid by a client of his law firm. While Mr. Ring maintains that the government’s obstruction of justice theory is insufficient as a matter of law, DE 31 at 28-40, DE 45 at 23-25, it is clear that the factual proof of those counts would rest on testimony regarding communications between Mr. Abramoff, Mr. Scanlon, and Mr. Ring regarding the amount and distribution of a client’s fee and on testimony regarding Mr. Ring’s statements to outside legal counsel about those communications.1 Those issues bear no relation to the allegedly improper gifting and entertainment of federal officials alleged in the prior counts. The government has attempted to manufacture a connection between the sets of counts by adding superfluous language to Count One referencing Mr. Scanlon’s organization, Capitol Campaign Strategies, and the division of a client’s fee between Mr. Abramoff, Mr. Scanlon, and Mr. Ring. DE 2 at 6, ¶ 27-29. But the four paragraphs containing those references are unconnected to the remaining 194 paragraphs regarding the alleged corruption of public officials.

1

There is significant reason to believe that the client that paid the fee would indicate that it was unaware of the distribution of that fee between Mr. Abramoff, Mr. Scanlon, and Mr. Ring but would not claim that it was defrauded by Mr. Ring in the execution of the work. That is presumably why the government has not charged Mr. Ring with defrauding his client under a private honest services theory.

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Such a tenuous connection cannot justify the joinder of the Counts.2 See, United States v. Singh, 261 F.3d 530, 533 (2d Cir. 2001)(finding government’s contention that weapons charge was sufficiently connected to alien harboring charge because defendant threatened aliens with violence to maintain control over them “tenuous at best”). Similarly, seventeen of the eighteen relevant paragraphs in Count Nine (which are incorporated by reference in Count Ten) reference the fee arrangements between Mr. Abramoff, Mr. Scanlon, and Mr. Ring in relation to the firm client. A single paragraph inserted into the middle of the count alleges Mr. Ring “falsely stated he did not recall conversations about getting a job for Representative 5’s wife.” DE 2 at 44, ¶ 17. What the indictment fails to include is the fact that in that same interview, after having his memory refreshed by more specific questions, Mr. Ring recalled being asked to follow up on the issue with Mr. Abramoff. The indictment does not allege that Mr. Ring had any greater involvement. There are numerous paragraphs in the indictment referencing Mr. Abramoff’s conversations and efforts to get Representative 5’s wife work. But only three paragraphs reference Mr. Ring, and those paragraphs only allege that Mr. Ring noted inquiries from Representative 5 or his Chief of Staff about the status of Abramoff’s efforts.3 Setting aside the factual insufficiency of the allegation in that one paragraph, however, it is clear that the crux of Counts Nine and Ten is the allegation that Mr. Ring made false 2

These four paragraphs are surplusage to the remainder of Count One and should be stricken from the indictment pursuant to Federal Rule of Criminal Procedure 7(d). United States v. Fornah, No. 0430792005, U.S. App. LEXIS 3512, *3-4 (D.C. Cir. 2005). 3

See, DE 2 at 17, ¶ 78 (In 2000, Ring reported to Abramoff that Representative 5’s Chief of Staff asked whether they had found employment for Representative 5’s wife), 18, ¶ 84 (In 2000, Ring sent an email to Abramoff saying Representative 5’s Chief of Staff reported that Representative 5 was excited and appreciative of a possible employment opportunity for his wife), 22, ¶ 117 (In 2002, Ring emailed Abramoff that he met with Representative 5, who asked about work Abramoff was to get for Representative 5’s wife).

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statements about mishandling of client funds. This is not a case where the alleged obstructive behavior relates to the underlying conduct. See, United States v. Mir, 525 F.3d 351 (4th Cir. 2008). Here, any cognizable obstruction allegation bears no logical relationship to the alleged scheme to commit public honest services fraud and the counts are therefore misjoined in violation of Rule 8(a). II.

EVEN IF THE ORIGINAL JOINDER OF THE COUNTS IS FOUND TO BE PROPER, THE COURT MAY, AND SHOULD, SEVER COUNTS NINE AND TEN FROM THE REMAINDER OF THE INDICTMENT FOR PURPOSES OF TRIAL. Even if this Court were to conclude that the initial joinder was not improper, it can sever

the offenses for trial if continued joinder appears to prejudice a defendant. FRCP 14(a). Such prejudice can take many forms: The defendant may be embarrassed or confused in presenting separate defenses. Fifth Amendment infringements may occur. The jury may use evidence of one crime charged to infer guilt on all charges. Latent feelings of hostility toward the defendant may result… MOORE’S FEDERAL PRACTICE 3d, § 614.03[1][a]. In an oft-cited case, Judge Learned Hand wrote “[t]here is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all." United States v. Lotsch, 102 F.2d 35, 36 (2d Cir. 1939). Here, the risk of prejudice to Mr. Ring is significant. Counts Nine and Ten involve allegations that he misled outside legal counsel and improperly received a portion of a client’s fee. Evidence of dishonest conduct is highly likely, indeed probably intended, to inflame the jury and color its consideration of the public honest services fraud allegations against Mr. Ring even though there is no overlap in evidence between the allegations. Evidence necessary to establish Mr. Ring’s guilt on Counts Nine and Ten would be inadmissible in a trial on Counts

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One through Eight, as it would have no legitimate purpose and would tend only to demonstrate bad character on Mr. Ring’s part. Federal Rules of Evidence 403, 404(b), see Motion to Exclude Uncharged Misconduct, DE 53. In a case such as this, where there is no substantial overlap in evidence and particularly where the evidence necessary to prove each of the offenses would be inadmissible in a trial of the other, it would be error to permit continued joinder of the offenses for trial. Richardson, 161 F.3d at 734. WHEREFORE, for the foregoing reasons, Mr. Ring respectfully requests that the Court sever Counts Nine and Ten from the remainder of the indictment for purposes of trial.

Respectfully Submitted,

/s/ Richard A. Hibey Richard A. Hibey (D.C. Bar #74823) Andrew T. Wise (D.C. Bar # 456865) Timothy P. O’Toole (D.C. Bar # 469800) MILLER & CHEVALIER CHARTERED 655 Fifteenth Street, N.W., Suite 900 Washington, DC 20005-5701 Tel.: (202) 626-5800 Fax: (202) 628-0858 Attorneys for Kevin A. Ring

Dated: May 29, 2009

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