Tuesday, December 10, 2019
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Bribery Conviction of Ex-Congressional Aide Is Affirmed
Ninth Circuit Rejects Contention That No ‘Official Act’ Was Involved Because Promise That Medical Marijuana Dispensary Would Not Be Shut Down Was Impossibility in Light of Ban
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has affirmed the bribery conviction of a man who was at the time of his offense a field representative for then-U.S. Rep. Janice Hahn, now a member of the Los Angeles County Board of Supervisors, rejecting his contention that no “official act” was involved because he was powerless to provide the benefit he promised in exchange for a $5,000 pay-off.
But promising to provide something that can’t be delivered at present, the Ninth Circuit said, does not foreclose criminal liability where it could conceivably be supplied in the future.
What defendant Michael Kimbrew promised was that Green Legendz would be put a list of five medical marijuana dispensaries in Compton that would be allowed to remain open, while others would be shut down. Kimbrew, whose office was in City Hall, said he could protect the dispensary through his connections with Compton Mayor Aja Brown, as well as his ties to Hahn.
Money Passed
The man to whom Kimbrew passed the money in a restaurant, under a menu, was believed by him to be an investor and partner in Green Legendz. In actuality, he was an undercover agent for the FBI.
Kimbrew had previously visited the dispensary, then met with the owners at City Hall, telling them they had permitting problems but that he could “make all that go away.”
The defendant was convicted of bribery, in violation of 18 U.S.C. §201, as well as attempted extortion. He was sentenced to a year-and-a-half in prison, to be followed by three years of supervised release, and was ordered to pay $5,000 in restitution and $4,000 in fines.
‘Official Act’
Kimbrew insisted on appeal that he did not commit an “official act,” within the meaning of the bribery statute, because what he promised was an impossibility given that there was an absolute ban on medical dispensaries in Compton, so that no amount of exertion of influence could have resulted in an exemption for Green Legendz.
Writing for a three-judge panel, Circuit Judge Jacqueline H. Nguyen said:
“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.”
She quoted the statute as saying, with emphasis added by her, that it applies to a matter “which may at any time be pending, or which may by law be brought before any public official.”
Future Action
Nguyen continued:
“This language encompasses scenarios in which a briber might anticipatorily seek to induce official action relevant to a circumstance yet-to-come. For example, on the eve of anticipated marijuana legalization—but while its sale was still illegal—an entrepreneur might bribe an official to ‘reserve’ his services to help obtain a future dispensary permit. A quid pro quo of that nature remains a private inducement attached to the provision of a ;formal exercise of government power’…, albeit a contingent one.”
She added:
“But a bribe tied to a contingency is no less a bribe.”
The circuit judge went on to say:
“The reach of § 201 is not unlimited. For example, the ‘official act’ core of § 201 carries with it a requirement that there be a nexus between the public officials position and the quo he promises. But this only takes Kimbrew so far. His official responsibilities included engaging with the local Compton government, serving as a representative in that community, and informing the Congresswoman of any local activity of which she should be aware. Accordingly, the quos at issue bore a nexus to Kimbrew’s official role.”
The case is United States v. Kimbrew, 18-50251.
Copyright 2019, Metropolitan News Company