ring sentencing

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) UNITED STATES OF AMERICA ) ) v. ) No. 08-CR-274 (ESH) ) KEVIN A. RING ) ) Defendant. ) ____________________________________)

SENTENCING MEMORANDUM OF KEVIN A. RING

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) 626-5801

Case 1:08-cr-00274-ESH Document 290 Filed 09/30/11 of 45

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TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................................................1

II. STATUTORY FRAMEWORK...........................................................................................1

III. THE NATURE AND CIRCUMSTANCES OF THE OFFENSE AND THE HISTORY AND CHARACTERISTICS OF THE DEFENDANT ............................2

A. The History and Character of the Defendant ...........................................................3

B. The Nature and Circumstances of the Offense ......................................................10

IV. THE NEED TO AVOID UNWARRANTED SENTENCE DISPARITIES. ....................13

V. THE KINDS OF SENTENCES AVAILABLE.................................................................18

VI. THE SENTENCING GUIDELINES AND GUIDELINE POLICY STATEMENTS..................................................................................................................18

VII. THE NEED TO PROVIDE RESTITUTION TO VICTIMS OF THE OFFENSE ..........................................................................................................................19

VIII. THE PURPOSES OF SENTENCING...............................................................................20

A. Seriousness of the Offense, Respect for the Law, and Just Punishment for the Offense ...................................................................................20

B. Adequate Deterrence to Criminal Conduct............................................................24

C. Protection of the Public and the Need for Rehabilitation ......................................27

D. Provision of Needed Correctional Treatment ........................................................27

IX. FINE...................................................................................................................................28

X. IF THE COURT DOES NOT IMPOSE PROBATION, IT SHOULD FORMULATE A SENTENCE INVOLVING ALTERNATIVES TO INCARCERATION...........................................................................................................28

XI. IF THE COURT IMPOSES ANY TERM OF IMPRISONMENT SHOULD ALLOW MR. RING TO REMAIN ON RELEASE STATUS PENDING APPEAL..........................................................................................................29

A. Mr. Ring Does Not Pose A Flight Risk Or A Danger To Others ..........................30


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B. Mr. Ring’s Appeal Is Not For the Purposes of Delay and Raises Several Substantial Questions of Law and Fact That Would Provide Material Relief on Appeal ........................................................................31

XII. IF THE COURT IMPOSES A TERM OF IMPRISONMENT, IT SHOULD RECOMMEND THAT BOP DESIGNATE MR. RING FOR AN APPROPRIATE FACILITY TO MINIMIZE THE EFFECT OF HIS INCARCERATION ON HIS SMALL CHILDREN AND SO THAT HE CAN ASSIST IN THE PREPARATION OF HIS APPEAL ............................................34

XIII. CONCLUSION..................................................................................................................36


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TABLE OF AUTHORITIES

Page(s) CASES

*Gall v. United States, 552 U.S. 38 (2007)...............................................................................................................2, 18

Griffin v. Wisconsin, 483 U.S. 868 (1987).................................................................................................................18

*Kimbrough v. United States, 552 U.S. 85 (2007).....................................................................................................................2

McCormick v. United States, 500 U.S. 251 (1991).................................................................................................................32

Nelson v. United States, 555 U.S. 350 ............................................................................................................................18

*Pepper v. United States, 131 S. Ct. 1229 (2011).........................................................................................................2, 18

*Rita v. Unites States, 551 U.S. 338 (2007).................................................................................................................18

*United States v. Booker, 543 U.S. 220 (2005).............................................................................................................2, 10

United States v. Ganim, 510 F.3d 134 (2d Cir. 2007).....................................................................................................13

United States v. Griffin, 324 F.3d 330 (5th Cir. 2003) ...................................................................................................19

United States v. Kemp, 500 F.3d 257 (3d Cir. 2007).....................................................................................................13

United States v. Knights, 534 U.S. 112 (2001).................................................................................................................18

United States v. Lente, No. 10-2194, 2011 U.S. App. LEXIS 15647 (10th Cir. July 29, 2011) ..................................13

United States v. Martinez, 610 F.3d 1216 (10th Cir. 2010) ...............................................................................................14


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United States v. McMillan, 600 F.3d 434 (5th Cir. 2009) ...................................................................................................19

United States v. Miller, 753 F. 2d 19 (3d Cir. 1985)......................................................................................................31

United States v. Parker, 462 F.3d 273 (3d Cir. 2006).....................................................................................................14

United States v. Perholtz, 836 F.2d 554 (D.C. Cir. 1987) .................................................................................................31

United States v. Pollard, 778 F.2d 1177 (6th Cir. 1985) .................................................................................................31

United States v. Quinn, 416 F. Supp. 2d 133 (D.D.C. 2006) ...................................................................................30, 31

United States v. Sawyer, 239 F.3d 31 (1st Cir. 2001)................................................................................................14, 33

United States v. Sawyer, 85 F.3d 713 (1st Cir. 1996)..........................................................................................14, 19, 33

United States v. Scott, 631 F.3d 401 (7th Cir. 2011) .............................................................................................21, 22

United States v. Skilling, 130 S. Ct. 2896 (2010).............................................................................................................32

United States v. Stewart, 590 F.3d 93 (2d Cir. 2009).................................................................................................22, 23

United States v. Walker, 439 F.3d 890 (8th Cir. 2006) ...................................................................................................14

United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009) ...................................................................................................13

United States v. Wills, 476 F.3d 103 (2d Cir. 2007).....................................................................................................14

DOCKETED CASES

United States v. Albaugh, case 1:08-cr-00157-ESH (DDC) ....................................................15, 16

United States v. Boulanger, case 1:09-cr-25-RWR (DDC) ...........................................................15

United States v. Coughlin, case 1:08-cr-00111-ESH (DDC).........................................................16


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United States v. Volz, case 1:06-cr-00119-ESH (DDC) ................................................................15

STATUTES

2 U.S.C. § 1604(d)(1)(G)...............................................................................................................26

2 U.S.C. § 1606(b) .........................................................................................................................26

2 U.S.C. § 1613..............................................................................................................................25

18 U.S.C. § 208..............................................................................................................................16

18 U.S.C. § 3143......................................................................................................................30, 33

18 U.S.C. § 3553.................................................................................................................... passim

18 U.S.C. § 3621(b)(4)(B) .............................................................................................................34

28 U.S.C. § 994(c)(4), (5) ..............................................................................................................20

OTHER AUTHORITIES

Ben Conery, Abramoff aide’s conviction may wrap up scandal, The Washington Times (November 15, 2010), http://www.washingtontimes.com/news/2010/ nov/15/abramoff-aides-conviction-may-wrap-up-scandal.......................................................20

Nedra Pickler, Ring Found Guilty of 5 Counts in Bribery Case, AP, (November 16, 2010), http://abcnews.go.com/Business/ wire Store?id= 1254359..........................................20


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TABLE OF ATTACHMENTS

ATTACHMENT A 1. Kevin A. Ring 2. Kerrie O’Brien Ring 3. Edward P. Ayoob 4. Mary R. Breslin 5. Reid Peyton Chambers 6 Megan Collins 7. John T. Doolittle 8. Michael Gaudet 9. Richard Hibey 10. Lakon Holloway 11. Jonathan Lewis 12. David Lopez 13 Jennifer Lukawski 14. Scott Messinger 15. Paul Morrell 16. Ronald L. Platt 17. Mary Price 18. Joe R. Reeder 19. Elizabeth Wortley Ring 20. Vincent S. Ring, Jr. 21. Michael D. Smith 22. Julie Stewart

ATTACHMENT B 1. Eugenia Bacote 2. Karmela Barron 3. Barbara Bermingham 4. Carey J. Biondi 5. William M. Brooke 6. Terra E. Brusseau 7. Glenn E. Buberl 8. Michael L. Cahill 9. Gregory Cavanagh 10. Joseph Cerino 11. Robert Charrow 12. David Cirasuolo 13. Sheila Cole 14. Linsey C. Crisler


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15. Christopher R. D’Arcy 16. Brian J. Dalton 17. Matthew DeMazza 18. Frank Dinsmore 19. Jim Dolbow 20. John T. Dunn 21. Joseph J. Eule 22. Alison D. Friedrich 23. Michael J. Friedrich 24. Olga Garza-Friedrich 25. Thomas J. Friedrich 26. Eve T. Gabis 27. Karen Garrison 28. Molly M. Gill 29. Kristina Grist 30. Hilda Cristina Segovia 31. Caryn Hederman 32. Kim Ionidis 33. Clint Jacobs 34. Thomas P. Kilgannon 35. Justin Kulo 36. Nancy L. Mallin 37. Denise Maresco 38. Kevin McCrea 39. Carrie S. Miljevich 40. Adelaide Moran 41. Gretchen Moss 42. Joan Nelson 43. Greg Novarro 44. John P. O’Brien 45. Robert O’Brien 46. Timothy O’Brien 47. Linda O’Reilly 48. Ava Page 49. Mary J. Pavel 50. Brigham Pierce 51. Laura Foote Reiff 52. Beth M. Ring 53. Dan Ring 54. John F. Ring 55. Kathy Ring 56. Timothy J. Ring 57. Bobbie O’Brien-Shanley 58. Michael Rothman


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59. Amy Steckler Rothman 60. Beth T. Sigall 61. Julie L. Sigall 62. Annemarie M. Spain 63. Anne Spoldi 64. John F. Steele 65. Nancy Taylor 66. Christine D. Thomas 67. Claire J. Vallillo 68. Jacqueline Vallillo 69. James J. Vallillo 70. J. Daniel Walsh 71. John Willis 72. John J. Wolfe 73. J. Christine Wrightson 74. Ann M. Yeomans


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I. INTRODUCTION

Kevin Ring will appear before this Honorable Court for sentencing on October 26, 2011

following his conviction on five of eight counts of an indictment alleging honest services wire

fraud, payment of an illegal gratuity, and conspiracy. The Court has calculated Mr. Ring’s

advisory Sentencing Guideline range as 46-57 months incarceration based on a criminal history

level I and an adjusted offense level 23. Because such a sentence would far exceed the

punishment necessary to achieve the legitimate goals of sentencing as set forth in 18 U.S.C.

§ 3553, Mr. Ring, through undersigned counsel, urges the Court to vary from that range and,

instead, impose a sentence that properly considers the full array of relevant facts at issue in this

case, including Mr. Ring’s personal history and circumstances, the real conduct that underlay the

offenses of conviction, and the sentences already imposed on others for conduct more corrupt

than was Mr. Ring’s. As explained more fully below, we submit that the appropriate sentence is

a 60-month term of probation. While we recognize that such a sentence may appear lenient at

first blush, a comprehensive review demonstrates that such a sentence is not only comparatively

fair, it is reasonable and proper in consideration of Mr. Ring’s circumstances, the nature of his

individual actions, and the significant sanctions this unique prosecution has already visited upon

him and his family.

II. STATUTORY FRAMEWORK

18 U.S.C. § 3553(a) requires the district court to “impose a sentence sufficient, but not

greater than necessary, to comply with the purposes set forth in paragraph (2)” of that provision.

Those purposes are:

(2) the need for the sentence imposed --

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;


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(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and,

(D) to provide the defendant with needed education or vocational training, medical care, or other correctional treatment in the most effective manner;

18 U.S.C. § 3553(a)(2). In fashioning a sentence that complies with the “overarching

provision instructing district courts to ‘impose a sentence sufficient, but not greater than

necessary,’ to accomplish the goals of sentencing,” Kimbrough v. United States, 552 U.S. 85,

101 (2007); see also Pepper v. United States, 131 S. Ct. 1229, 1242 (2011) (sentencing in

accordance with “sufficient, but not greater than necessary” mandate is court’s “overarching

duty”), the Court must consider a broad range of factors, including the nature and circumstances

of the offense and the history and characteristics of the defendant, 18 U.S.C. § 3553(a)(1), the

kinds of sentences available, 18 U.S.C. § 3553(a)(3), the sentencing guidelines and guideline

policy statements, 18 U.S.C. § 3553 (a)(4),(5), the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar

conduct, 18 U.S.C. § 3553(a)(6), and the need to make restitution to any victims of the offense.

18 U.S.C. § 3553(a)(7); see also United States v. Booker, 543 U.S. 220, 259-60 (2005). The

district Court must “make an individualized assessment based on the facts presented” and

determine their appropriate weight in light of the purposes of sentencing. Gall v. United States,

552 U.S. 38, 50-52 (2007); see also Pepper, 131 S. Ct. at 1242-43.

III. THE NATURE AND CIRCUMSTANCES OF THE OFFENSE AND THE HISTORY AND CHARACTERISTICS OF THE DEFENDANT

Section 3553(a)(1) is a “broad command to consider ‘the nature and circumstances of the

offense and the history and characteristics of the defendant.’” Gall, 552 U.S. at 50 n.6. In this

case, both prongs weigh in favor of a lenient sentence. While the offenses of conviction are

serious in nature, Mr. Ring’s role in those offenses was comparatively minor and the


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circumstances of his conduct are less blameworthy than other, more egregious public corruption

offenses. And Mr. Ring’s personal history and actions, especially during the seven years since

the events that led to his indictment, demonstrate a depth and sincerity of character diametrically

opposed to the caricature of the man presented through two trials.

A. The History and Character of the Defendant

Kevin Ring was presented to jurors as a callous, greedy, and self-entitled lobbyist --

indeed, the government suggested on at least one occasion that Mr. Ring thought of himself as

“amoral pond scum.” Attached to this memorandum are dozens of letters1 from Mr. Ring’s

family, friends, and professional colleagues from the last two decades.2 They cover each stage

of his personal and professional life, and some themes are constant: Mr. Ring’s generosity, his

loyalty, his idealism, his penchant for self-examination and introspection, his deep commitment

to his family, and his singular focus on the development and well-being of his two daughters:

1 To facilitate the Court’s review of the letters, we have divided them into two tranches. The first consist of letters from Mr. Ring, Kerrie O’Brien Ring, family, close friends and current and former colleagues. The letters in the first tranche most extensively describe events addressed in the memorandum and, accordingly, merit the Court’s closest attention. The second tranche is significantly more voluminous. It also consists of letters from family, close friends and colleagues, and touches on some of the same themes as the letters in the first group. While this second tranche of letters is important in their own right and each letter is worthy of the Court's careful consideration, they were grouped separately so that the Court's initial focus could be on the first set of letters.

2 It will not surprise the Court that many of Mr. Ring’s close friends and family members view Mr. Ring’s conviction as unjustified and wrongful. The fact that individuals who hold Mr. Ring in high regard reject the notion that he harbored criminal intent in connection with his professional relationships should come as little surprise, and it would be unnatural for someone close to Mr. Ring to ignore his or her personal experiences with Mr. Ring in describing his character to the Court. We will not be asking the Court to ignore the jury’s verdict based upon the letters offered in support of Mr. Ring and are certain that the Court will be able to properly evaluate a writer’s opinions on Mr. Ring’s guilt or innocence in the context of their description of his character. However, the fact that defense counsel chose not to call witnesses in Mr. Ring’s defense and instead to simply challenge whether the government had met its burden of proof should not preclude the Court from considering these submissions. Counsel has withheld a letter that was devoted almost entirely to attacking a single count on which Mr. Ring was convicted and taken the liberty of redacting similar portions out of another. We will maintain the originals of both in the event that the Court wishes to review them.


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Kiley, age nine, and Audrey, who will turn six on the day of sentencing. Together with the PSR,

the letters present a fairly comprehensive portrait of Mr. Ring and we will not repeat the content

of the letters and PSR other than to try to address two questions: who is Kevin Ring and how did

he end up here?

Mr. Ring is the youngest of four children of Vincent and Lucille Ring. He was born and

raised in Connecticut and lived there until he left home for college at the age of seventeen. From

a very young age, Kevin dealt with both joy and adversity at home. As detailed in letters from

his siblings, Mr. Ring’s parents were nurturing and instilled in their children basic values of

integrity, honesty, and hard work. At the same time, Kevin’s father battled alcoholism for much

of Kevin’s childhood and was in and out of residential treatment programs. His mother suffered

from bipolar disorder and was hospitalized in a psychiatric facility on at least two occasions.

Vincent and Lucille Ring divorced when Kevin was twelve years old, yet Kevin’s relationship

with and commitment to both of his parents remained steadfast throughout their lives. Both of

Mr. Ring’s parents passed away during the pendency of this case; his mother months before the

indictment was returned after a long bout with lung cancer, and his father shortly before the first

trial after experiencing complications from chronic obstructive pulmonary disease. In their

letters, Mr. Ring’s family members document his frequent trips home to care for his parents and

attend to their physical and emotion needs, even during periods when he was consumed by the

stress and demands of this case. The unwavering commitment to family remains one of Mr.

Ring’s defining traits.

Despite the challenges he faced at home, Mr. Ring excelled academically, graduating

from a high school honors program before earning a B.A. in Political Science from Syracuse

University in just over three years and a law degree from Catholic University. He did not come


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from a wealthy family, and as his brother Vincent notes, Kevin worked throughout high school

and college in order to help fund his own education he and attended law school at night so that

he could work on Capitol Hill during the day. His friend Lakon Holloway recounts times that

Mr. Ring returned to work after class in his effort to juggle the responsibilities of his education

and job. This tireless work ethic was essential in Mr. Ring’s rapid ascendance once he started

work on Capital Hill.

Mr. Ring first met Congressman John Doolittle when he took a job as an intern on the

Congressman’s staff in 1993. He would stay in that office for five years, eventually ascending to

the position of Legislative Director. At just 24, Mr. Ring was given the responsibility to devise

and implement the Congressman’s legislative agenda. In 1998, Mr. Ring joined the staff of

Senator John Ashcroft as counsel to the Senate Judiciary Committee. In 1999, he became the

Executive Director of the House Republican Study Committee, where he coordinated policy

initiatives among conservative members of the House of Representatives.

As many of the letters attached to this memorandum attest, Mr. Ring developed and

maintained close relationships in each of these offices and took an interest in the staffers with

whom he worked. As detailed in Congressman Doolittle’s letter, during Mr. Ring’s five years as

a staffer, Mr. Ring developed a close, personal friendship with Congressman Doolittle and came

to know the Congressman’s wife. Those relationships lasted long after Mr. Ring left for other

jobs. He also developed friendships with a number of the Congressman’s staffers, including his

Chief of Staff, David Lopez. Along the way, Mr. Ring cultivated relationships with people at

every level, from Chief of Staff through the youngest interns. He mentored new staffers and

took a genuine interest in the lives of the Congressman’s assistants. There was a reason, quite


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apart from meals and tickets, that when Mr. Ring left the Hill to become a lobbyist, he had full

access to the Congressman’s office.

A number of personality traits emerge from letters recounting Mr. Ring’s time as a law

student and Capital Hill staffer. Friends write of his love for political debate and willingness to

throw himself into difficult issues. Others recount his fierce competitiveness and work ethic.

Many have described his loyalty to close friends and family. All have described his quick wit

and sarcastic, but endearing, sense of humor. Standing alone, each of these traits is admirable

and as the many letters prove, Mr. Ring made lasting friendships at every stop in his life.

Ironically, it was many of these same traits that led him into peril during his years as a lobbyist.

In late 1999, Mr. Ring left the Republican Study Committee to join the lobbying practice

at Preston Gates Ellis & Rouvellas Meeds LLP. He had just turned twenty-nine years old, and

over the next four years, Mr. Ring ascended through the ranks at Preston Gates and then

Greenberg Traurig as part of a team of lobbyists working under Jack Abramoff. He was a law

firm partner at 31, and was named a “top lobbyist” by local publications. As letters from former

colleagues from Greenberg Traurig reflect, he was viewed as a rising star within Greenberg

Traurig’s lobbying practice and handled some of the firm’s more important clients. Mr. Ring’s

work ethic, competitive nature, and professional excellence landed him in rarified air. But as

Reid P. Chambers so aptly notes in his letter to the Court, “[a]t a very young age, all his

professional dreams seemed realized. But as a very young professional, I don’t think Kevin

realized how unusual and ephemeral that kind of success can be in life.”

After two trials, the Court has a sense of the environment that Mr. Abramoff cultivated at

Preston Gates and then at Greenberg Traurig. The practice was hard-charging, image-driven,

and aggressive to a fault -- all characteristics that appealed to a group of late-20s, early-30s


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lobbyists fresh off Capitol Hill and convinced of their ability to parlay their experience into

financial and reputational gain. Perhaps with strong and sound mentoring, raw talents like Kevin

Ring and Neil Volz would have turned into the leaders that their past resumes suggest they could

have been. But Mr. Abramoff was obviously not an honest mentor, a worthy teacher, or even a

concerned boss. The Court likely recalls Mr. Abramoff’s answer to Mr. Volz when Mr. Volz

asked about receiving ethics training from Greenberg Traurig’s managing partner, Joe Reeder --

“f*ck Joe Reeder.”

While Mr. Ring worked closely with Mr. Abramoff, his colleagues recognized even then

that he was different. The Court will note that the above-mentioned Joe Reeder, along with

many other current Greenberg Traurig colleagues including Ron Platt, Michael Smith, Eddie

Ayoob, Christine Thomas, and Dan Walsh, have written letters in support of Mr. Ring and

describing his substantive, client-centered work and more importantly, his honesty. Over the

past three years, Kevin Ring has become the public face of the Abramoff scandal. The trials

have received coverage in the local and national press. A number of individuals went to great

lengths to avoid testifying in Mr. Ring’s defense, presumably motivated in part by a desire to

avoid the embarrassment of negative publicity. The fact that so many people would submit

letters in support of Mr. Ring at this stage speaks volumes about their belief in Mr. Ring’s

character and integrity.

This is not to suggest that Mr. Ring did not make mistakes. The first attachment to this

memorandum is a letter to the Court from Mr. Ring and in it he details a myriad of ways in

which he failed to live up to his own ideals. Some of the billing practices that the Court heard

about in the course of litigating 404(b) issues were unacceptable, and Mr. Ring was a participant

in those practices. And the entertainment that Mr. Abramoff facilitated through the purchase of


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suites at various stadiums and the opening of his own restaurant was extravagant. As a man who

came to Washington, D.C. from modest means and who worked to put himself through school,

Mr. Ring was admittedly swept away by access to an unlimited expense account and limitless

tickets to the hottest events. As letters make clear, Mr. Ring enjoyed the perks of his job, and as

trial testimony demonstrated, he willingly shared those perks with friends, including many whom

he was simultaneously lobbying on client issues. Mr. Ring steadfastly denies that he intended to

offer and provide those tickets and meals as bribes, but he has never denied that he said “yes”

when asked and sought to maximize the advantages those perks gave him.

At the same time that he transitioned in his professional life from Hill staffer to lobbyist,

Mr. Ring transitioned in his personal life from bachelor to husband, and then from husband to

father. As the letters make clear, that transition was profound. In May 2000, he married Kerrie

O’Brien. A little over two years later, when Mr. Ring was still working at Greenberg Traurig,

Mr. Ring’s first child, Kiley, was born. As the PSR documents show, at the time that Kiley was

born, Mr. Ring’s drinking had reached a point of crisis. Shortly thereafter, due largely to his

awareness of the effect his father’s alcohol problems had on him as a child, Mr. Ring resolved to

stop drinking. He has not had a drink since August 2003.

In 2005, Mr. Ring’s second daughter, Audrey was born. The circumstances brought

about by this case have created enormous challenges for Mr. Ring and his children. Mr. Ring’s

marriage unraveled under the strain of the investigation and trials and Ms. O’Brien has moved

out of the family home. Due a combination of factors well-detailed in the PSR, Mr. Ring has

served as the primary caretaker to Kiley and Audrey for close to two years. For an even longer

period, Mr. Ring has been the primary source of guidance, parental support, and day-to-day

attention for his girls. He is also the primary source of income for their housing, food, and other


9

daily needs. The letters submitted to the Court document Mr. Ring’s unwavering commitment to

his daughters. Neighbors, friends, and colleagues have all noted Mr. Ring’s devotion to Kiley

and Audrey. While the Court has certainly heard many defendants speak of their devotion to

family, Mr. Ring has given meaning to that concept through his monumental efforts to shield

them from the turmoil caused by this case even as it has dominated his time and attention over

the past three years. A number of people attached an article Mr. Ring wrote about Kiley and

Audrey around Father’s Day after the first trial ended in a mistrial and Mr. Ring held out hope

that his ordeal might be drawing to a close. We urge the Court to read it for the meaningful

insight it provides into Mr. Ring’s relationship with his children as well as into his character and

capacity for meaningful self-evaluation. What the Court has before it is not simply a close

parent-child relationship. Mr. Ring has been, and continued to be, the life-line to his two girls.

As his wife has become, as she courageously admits to the Court, more paralyzed with fear,

Mr. Ring filled that void, even during a period of intense personal crisis. Nothing embodies

Mr. Ring’s absolute commitment to his girls more than Eddie Ayoob’s story of Mr. Ring conduct

on the evening the second jury returned its guilty verdicts.

In 2007, Mr. Ring resigned his position at Barnes & Thornburg due to the distraction

caused by the continuing criminal investigation of his work with Abramoff. In his letter, Mr.

Ayoob describes Mr. Ring’s determination to shield his clients from the collateral effects of the

investigation even at the expense of his own financial security. A year later, Mr. Ring applied

for a job as a grant writer with Families Against Mandatory Minimums (FAMM). Letters from

Julie Stewart, the President of FAMM, and Mary Price, FAMM’s Vice President and General

Counsel, describe their initial skepticism about bringing a conservative Republican lobbyist into

the fold at a non-profit organization dedicated to advocating for sentencing reform. But both Ms.


10

Stewart and Ms. Price found themselves thoroughly impressed by Mr. Ring’s honesty, integrity,

and introspection. Their observations about Mr. Ring’s character and integrity are particularly

noteworthy, and it would be a disservice for us to attempt to paraphrase their sentiments about

Mr. Ring. Instead, we will urge the Court to pay special attention to their letters (as well as that

of Scott Messinger, the COO of the Constitution Project) and the insights into Mr. Ring that each

provides.

It is a virtually impossible task to summarize the history and character of a man like

Kevin Ring in a sentencing memorandum like this. The experiences, observations, and

anecdotes of those who have known him throughout his life provide much more meaningful

insight into the issues relevant to the Court in fashioning a fair and just sentence, and rather than

further belabor the point, we will simply make reference to those testimonials. Admittedly, the

profiles reflected in the letters directly conflict with a man now convicted of public corruption

offenses. In order to partially reconcile those conflicts, the Court must make a meaningful

evaluation of the second 18 U.S.C. § 3553(a)(1) factor -- the nature and circumstances of the

offense.

B. The Nature and Circumstances of the Offense

Determining the nature and circumstances of Mr. Ring’s offense presents more

complicated challenges than in the typical case. There is no question that he stands before the

Court convicted of serious offenses. But “an act that meets the statutory definition can be

committed in a host of different ways”, Booker, 543 U.S. at 251 (Breyer, J., (Remedial Op.,

Breyer, J.), and therefore in determining a fair sentence, a court must look to the “real conduct

that underlies the crime of conviction.” Id. at 250 (determination of “real conduct” is

“particularly important in the federal system where crimes defined as, for example, … using the


11

mail "for the purpose of executing" a "scheme or artifice to defraud," … can encompass a vast

range of very different kinds of underlying conduct.”) In this case, review of Mr. Ring’s “real

conduct” suggests it is less morally culpable and deserving of harsh punishment than typical

public corruption offenses and certainly than the conduct of others involved in this particular

conspiracy.3

The defense is aware that the Court has ruled that the government’s evidence was legally

sufficient to support Mr. Ring’s convictions and we do not seek to relitigate that issue in this

pleading. But a scheme involving explicit agreements between private citizens and public

officials to exchange cash and other high-value items for legislative acts or government contracts

is deserving of more significant punishment than a scheme involving an agreement between

lobbyists to provide public officials with customary forms of local entertainment with the

expectation, or even intention, that those public officials will then act favorably toward the

lobbyists when approached on future occasions. The evidence against Kevin Ring consisted

almost entirely of the latter.

First, virtually all of the things of value given to public officials by Mr. Ring were local

meals and tickets to sporting events. The significant exception was the job for Julie Doolittle

that was the subject of count VIII of the indictment. With respect to the job, we would simply

note the following: (1) at the time Mr. Abramoff gave Ms. Doolittle the job, there was no legal

prohibition against lobbyists employing the spouse of a Member of Congress, (2) other than

relaying messages between Mr. Doolittle (sometimes via his Chief of Staff) and Mr. Abramoff,

Mr. Ring had no role in arranging the job, (3) Mr. Ring did not participate in setting the terms of

3 As the Court has noted, Mr. Abramoff’s offense level was driven primarily by charges arising out of his and Mr. Scanlon’s defrauding of Indian tribal clients rather than by the public corruption offenses that formed the basis of Mr. Ring’s convictions. DE 289 at 9 n. 14.


12

the job, including either the work to be done by Ms. Doolittle or the amount she was to be paid,

and (4) the government wholly failed to prove what work Ms. Doolittle did or failed to do and

the fair market value of that work.

Through two trials, the Court heard extensive testimony about various trips arranged by

lobbyists and taken by public officials. While the Court allowed the testimony as relevant

evidence of co-conspirators’ acts, for sentencing purposes the Court should consider Mr. Ring’s

minimal role in those trips. Much of the trip testimony came from Neil Volz and concerned trips

he provided to Representative Bob Ney to places such as Scotland, Lake George, and New

Orleans. Kevin Ring not only did not attend those trips, there was no evidence he was even

aware of them. Todd Boulanger testified about a 2001 Super Bowl trip, but conceded that

Mr. Ring did not go on that trip after failing to get ethics clearance from relevant House and

Senate offices. And the evidence regarding David Lopez’s trip to Puerto Rico was that

Greenberg Traurig paid for Mr. Lopez’s airfare -- approximately $1,300 according to Mr.

Lopez’s publicly-filed disclosure form. Of course, any trip given in exchange for official acts

can qualify as an illegal bribe. But the government has repeatedly valued these trips at around

$200,000 and while the Court has rejected that figure as a driver of Mr. Ring’s guideline range,

DE 289 at 33, in considering the nature of Mr. Ring’s offense the Court should also recognize

that his role in the illegal trips was minimal.

Second, there was no evidence that Mr. Ring ever entered an explicit agreement with a

public official to exchange meals or tickets for official acts. While the Court has ruled that such

an agreement is not necessary, even in the context of lobbying, the absence of any such

agreement distinguishes Mr. Ring’s conduct from that of individuals involved in the many honest

services cases this Court has reviewed in the context of resolving various issues. For example,


13

the honest services fraud cases cited by the Supreme Court in Skilling were all notably different

than what is presently before the Court. United States v. Ganim, 510 F.3d 134, 138 (2d Cir.

2007) involved explicit agreements between public official Ganim and private individuals in

which Ganim agreed to steer city contracts to the private individuals who, in return, agreed that

“a portion of that money [from the agreement] would be to take care of [Ganim].” United States

v. Kemp, 500 F.3d 257, 266-70 (3d Cir. 2007) involved similarly explicit agreements to rig

government bidding processes in exchange for close-in-time cash payments, personal home

repairs, loan guarantees, or lavish trips. United States v. Whitfield, 590 F.3d 325, 336-41 (5th

Cir. 2009) involved an agreement between a lawyer and multiple judges in which the lawyer

guaranteed (and ultimately agreed to repay) hundreds of thousands of dollars in short-term loans

for the judges, while at the same time litigating multi-million dollar cases in front of them.

Mr. Ring’s offense does not approach the level of moral culpability or blameworthiness of the

conduct involved in those cases and the Court’s sentence should reflect that fact.

Finally, with regard to the nature of Mr. Ring’s offense, it is noteworthy that he, unlike

many others in the Abramoff scandal, was not accused of engaging in corrupt activity during his

years as a public official.

IV. THE NEED TO AVOID UNWARRANTED SENTENCE DISPARITIES.

The Court must consider “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(6). This is a “critical sentencing factor [because]… [e]qual justice is a core goal of our

constitutional system.” United States v. Lente, No. 10-2194, 2011 U.S. App. LEXIS 15647, at

*46 (10th Cir. July 29, 2011) (vacating sentence for failure to address the disparate sentence

issue).


14

While this provision has been most-often applied to reduce disparities among similarly-

situated defendants nationally, courts have recently recognized the propriety of a district court

considering disparities among co-defendants under § 3553(a)(6) as well. United States v.

Martinez, 610 F.3d 1216, 1228 (10th Cir. 2010) (while § 3553(a) does not require district court

to consider co-defendant disparity it is not improper for district court to do so); United States v.

Parker, 462 F.3d 273, 277 (3d Cir. 2006) (same); United States v. Walker, 439 F.3d 890, 893-94

(8th Cir. 2006). As the Second Circuit explained:

Under the advisory Guidelines scheme explicated in Booker, it is appropriate for a district court, relying on its unique knowledge of the totality of circumstances of a crime and its participants, to impose a sentence that would better reflect the extent to which the participants in a crime are similarly (or dissimilarly) situated and tailor the sentences accordingly. It would be anomalous to grant a district court ‘broad discretion in imposing a sentence within a statutory range,’ Booker, 543 U.S. at 233, but deny the court the ability to consider the sentence in its complete relevant context.

United States v. Wills, 476 F.3d 103, 110 (2d Cir. 2007).

The lack of similar cases to Mr. Ring’s makes nationwide consistency an elusive goal.

As set forth above, the only prior reported case involving a lobbyist charged with honest services

fraud for the provision of excessive entertainment to a public official was the 1996 Sawyer case.

Mr. Sawyer was initially sentenced to twelve months and one day imprisonment upon conviction

for mail and wire fraud, interstate travel to commit bribery, and conspiracy. United States v.

Sawyer, 85 F.3d 713, 719 (1st Cir. 1996). The charges were based upon Sawyer’s provision of

out-of-town trips, meals, golf, and entertainment to a group of Massachusetts lawmakers over a

seven-year period. Id. Sawyer’s initial conviction was reversed on appeal, and upon remand he

entered a plea to a single count of honest services fraud. United States v. Sawyer, 239 F.3d 31,

36 (1st Cir. 2001). On that conviction, the district court sentenced Mr. Sawyer to one year of

probation. Id.


15

Given the unique features of the present case, the sentences given to Mr. Ring’s alleged

co-conspirators provide a much more meaningful guide. As the Court has noted, Mr. Abramoff

received a 48-month sentence and Michael Scanlon received a 20-month sentence, but their

sentences were largely driven by their scheme to defraud a number of Indian tribes of many

millions of dollars. DE 289 at 6, 9 n. 14. The more meaningful comparisons are to individuals

such as Neil Volz, John Albaugh, and Robert Coughlin.4

Neil Volz pleaded guilty to conspiracy to commit honest services fraud and to violate the

post-employment restriction on Congressional staffers. United States v. Volz, case 1:06-cr-

00119-ESH (DDC), DE 4 (Plea Agreement). He admitted to engaging in corrupt acts both as a

staff and as a lobbyist, id., DE 5 (Factual Basis), and his behavior -- particular in relation to

Congressman Ney -- was egregious. Mr. Volz pleaded guilty and cooperated with the

government’s prosecutions of Mr. Ring and David Safavian, and was sentenced by this Court to

24 months probation.

John Albaugh pleaded guilty of conspiracy to commit honest services fraud. United

States v. Albaugh, case 1:08-cr-00157-ESH (DDC), DE 5 (Plea Agreement). He admitted to

having accepted meals, tickets, and campaign contributions from Kevin Ring, with the value of

4 Tony Rudy and Todd Boulanger would also provide meaningful guideposts but as of the filing of this memorandum, neither has been sentenced. The government has repeatedly delayed both men's sentencing hearings as Mr. Ring's case has moved towards its conclusion. Earlier today, the government filed its sentencing memorandum in Mr. Boulanger's case, in which it seeks a sentence of 4 months home confinement. United States v. Boulanger, 1:09-cr-25-RWR (DDC), DE 31. Notably, in its description of Mr. Boulanger's offense, the government again describes conduct that would not constitute honest services fraud under Skilling. Id at 1-2 See DE 289 at 32 n. 36 (Court describes as particularly troubling” government's attempt to include legal lobbying conduct within scope of honest services fraud).


16

things he personally received being at least $4,000.5 Id., DE 6 (Factual Basis). After testifying

at Mr. Ring’s first trial in a way that tracked his plea agreement, Mr. Albaugh recanted that

testimony and told the government that his official actions were taken because of the campaign

contributions and not because of meals and tickets he received from Mr. Ring. Id., DE 31 at 2

(Government’s Sentencing Memorandum). Mr. Albaugh was sentenced to 60 months probation,

including four months in a halfway house.

Robert Coughlin pleaded guilty to a conflict of interest violation under 18 U.S.C. § 208.

While the government allowed Mr. Coughlin to plead to a lesser offense as part of its plea

bargaining, the Court can and should still consider his sentence under 18 U.S.C. § 3553(a)(6), as

that provision deals with similar conduct and not just similar offenses of conviction. Mr.

Coughlin, a long-time friend of Mr. Ring, admitted to having accepted meals and tickets from

Mr. Ring valued at just under $5,000 while he was employed at the U.S. Department of Justice.

United States v. Coughlin, case 1:08-cr-00111-ESH (DDC), DE 7 (Statement of Offense). Just

before Mr. Ring’s first trial, Mr. Coughlin informed the government that he did not conspire with

Mr. Ring to commit any crimes and broadly denied the intent to commit any federal felony and

the government dropped Mr. Coughlin as a witness. Nevertheless, the government advocated for

Mr. Coughlin to receive credit for acceptance of responsibility and also moved for a downward

departure under USSG § 5K1.1. Id., DE 17 at 15-18. Mr. Coughlin was sentenced to time

served followed by three years of supervised release, including 30 days in a halfway house.

Given the need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct, this Court should fashion a sentence for

5 The calculation of the value of the tickets was based on a methodology that pre-dated, and was not consistent with, the methodology this Court adopted in connection with the sentencing of Robert Coughlin.


17

Mr. Ring within the range established by the sentences of Messrs. Volz, Albaugh, and Coughlin.

Mr. Volz’s conduct was far more blameworthy than Mr. Ring’s. When he was still a staffer, and

thus owed a fiduciary duty to the public, Mr. Volz took official actions that benefited

Mr. Abramoff’s clients while he secretly negotiated a job with Mr. Abramoff. He also took

numerous tickets, meals, and other things of value. His acts as a lobbyist, including but not

limited to numerous lavish trips with Mr. Ney and almost daily entertainment of Mr. Ney and his

staffers, far exceeded Mr. Ring’s behavior. While Mr. Volz earned leniency through his early

guilty plea and testimony for the government in trials of others, his sentence certainly reflected a

balancing of the good and the bad. Mr. Ring did not earn the leniency that Mr. Volz did, but he

certainly did not have nearly the negatives to mitigate.

Mr. Albaugh’s and Mr. Coughlin’s conduct were the opposite side of the coin to

Mr. Ring’s conduct. Concededly, Mr. Ring stands convicted of actions that involved both men,

as well as a count related to Ms. Doolittle’s job. But Mr. Albaugh admitted at trial that he

solicited campaign contributions and received meals and tickets from lobbyists other than Mr.

Ring, and both he and Mr. Coughlin were public officials who breached a fiduciary duty to the

public through their actions. Both men also signed false, publicly-filed disclosure forms that

failed to list their receipt of meals and tickets.6 If the evidence were that Mr. Ring had reached

an explicit quid pro quo with either Mr. Albaugh or Mr. Coughlin, perhaps that distinction would

be less important. But here, where Mr. Ring’s actions consisted of providing things that were

6 There was no evidence that Mr. Ring encouraged or assisted either man in completing their disclosure forms (unlike Mr. Volz’s admission that he created false documents and assisted Mr. Ney in concealing the value of a Scotland trip) and Mr. Albaugh explicitly stated that he never spoke to Mr. Ring about his disclosure form.


18

traditional parts of long-accepted lobbying, it is unreasonable to assign equivalent measures of

blame to a lobbyist who owes no duty to the public and a public official who does.

V. THE KINDS OF SENTENCES AVAILABLE

The Court has at its disposal every sentencing option in framing a just sentence for

Mr. Ring, including time served followed by a period of supervised release (as Mr. Coughlin

received), a period of home detention (as the government recommended for Mr. Volz and as Ann

Copland received), and probation with some form of restriction on Mr. Ring’s movement and

liberty. The Supreme Court has specifically recognized that probation is a substantial

punishment:

We recognize that custodial sentences are qualitatively more severe than probationary sentences of equivalent terms. Offenders on probation are nonetheless subject to several standard conditions that substantially restrict their liberty. See United States v. Knights, 534 U.S. 112, 119 (2001) (“Inherent in the very nature of probation is that probationers ‘do not enjoy the absolute liberty to which every citizen is entitled.’”(quoting Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)) Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced visits to their homes, refrain from associating with any person convicted of a felony, and refrain from excessive drinking. USSG § 5B1.3. Most probationers are also subject to individual “special conditions” imposed by the court.

Gall, 552 U.S. at 595-96. Given the extreme hardship that this case has already brought upon Mr. Ring and his

uniquely tenuous family situation as described above and discussed further below, a probationary

sentence would constitute meaningful, but measured and properly-tailored punishment.

VI. THE SENTENCING GUIDELINES AND GUIDELINE POLICY STATEMENTS

In fashioning an appropriate sentence, the Court must consider the advisory guidelines

sentencing range and applicable Sentencing Commission policy statements. 18 U.S.C.

§ 3553(a)(4),(5); see also Pepper, 131 S. Ct. at 1241-42. However, the district court may not


19

“presume that a sentence within the applicable Guidelines range is reasonable.” Nelson v. United

States, 555 U.S. 350,350 (2009), citing Rita v. United States, 551 U.S. 338, 351 (2007) (“We

repeat that the presumption before us is an appellate court presumption…[T]he sentencing court

does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”) In

many cases, the advisory guideline range is a useful guidepost to a district court because the

guidelines are generally the product of careful study based on extensive empirical evidence

derived from the review of thousands of individual sentencing decisions. Rita, 551 U.S. at 349.

In this instance, however, the guidelines are of limited value because this case is so distinct from

the type of honest services fraud or bribery cases that made up the universe of empirical evidence

which drove the guidelines. This Court has noted that there is only one other reported honest

services fraud case involving alleged corrupt gifting of public officials by a registered lobbyist.

See Tr. 9/28/09 (p.m.) at 51:12-16) (court notes that Sawyer is only honest services prosecution

involving lobbying, and that Mr. Ring’s case was even more difficult because of his friendship

with public officials he was lobbying). In such an instance, an advisory guideline range built on

extensive review of dissimilar cases cannot serve as a meaningful guide.

VII. THE NEED TO PROVIDE RESTITUTION TO VICTIMS OF THE OFFENSE

The statute also requires the Court to consider the need to provide restitution to any

victims of the offense in fashioning a sentence. 18 U.S.C. § 3553(a)(7). Here, the Court need

not factor in any restitution in imposing its sentence. First, a restitution award “must be limited

to losses caused by the specific conduct underlying the offense of conviction” and “may

encompass ‘only those losses that resulted directly from the offense for which the defendant was

convicted.’” United States v. McMillan, 600 F.3d 434, 459 (5th Cir. 2009); see, e.g., United

States v. Griffin, 324 F.3d 330, 368 (5th Cir. 2003). Moreover, as detailed in Richard Hibey’s

letter to the Court, four years before the commencement of this case, Mr. Ring paid $135,000 to


20

the Sandia Tribe to disgorge money he received from Mr. Abramoff as a result of Mr.

Abramoff’s reduction of Sandia’s fee to Greenberg Traurig in favor of Michael Scanlon.7

VIII. THE PURPOSES OF SENTENCING

Each of the factors discussed above must inform the Court’s formulation of a sentence

that is sufficient, but not greater than necessary, to satisfy the four purposes of sentencing set

forth in 18 U.S.C. § 3553(a)(2). We will address each purpose in turn.

A. Seriousness of the Offense, Respect for the Law, and Just Punishment for the Offense

Section 3553(a)(2)(A) requires the judge to consider “the need for the sentence imposed

... to reflect the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense.” While public corruption offenses are serious, for the reasons set

forth above, this public corruption offense -- excessive gifting of meals and tickets with no

explicit quid pro quo -- must be deemed to fall on the low end of the scale. The language of the

code section setting forth the duties of the Sentencing Commission suggests that an offense may

be more or less serious depending on “the community view of the gravity of the offense” or “the

public concern generated by the offense.” See, 28 U.S.C. § 994(c)(4), (5). To the extent that a

jury acts as the voice of the community, even the jury that returned guilty verdicts against

Mr. Ring did not view the offenses as particularly weighty. According to the Associated Press,

juror Stephen Baker said “I saw it as a waste of time and money, but the law is what it is,” as

several fellow jurors nodded in agreement. Nedra Pickler, Ring Found Guilty of 5 Counts in

Bribery Case, AP, (November 16, 2010), http://abcnews.go.com/Business/ wire Store?id=

7 There was a delay in the Sandia’s acceptance of those funds, likely because it was unclear whether the Tribe was entitled to “restitution” given that it had initially agreed to pay the total fee to Greenberg Traurig and Mr. Abramoff’s scheme involved redirecting, rather than increasing, that particular fee.


21

1254359. The Washington Times reported, “Several jurors stressed the complexity of the case

and one, Andre Ruffin, 48, a taxicab driver, said that although he thought Ring was guilty, the

case was a waste of time and money.” Ben Conery, Abramoff aide’s conviction may wrap up

scandal, The Washington Times (November 15, 2010),

http://www.washingtontimes.com/news/2010/ nov/15/abramoff-aides-conviction-may-wrap-up-

scandal.

The second prong of this subsection of 18 U.S.C. § 3553 is the requirement that the

district court consider the need for the sentence imposed to promote respect for the law. A

sentence that is excessive in light of the seriousness of the offense promotes disrespect for the

law. So does an unduly harsh sentence in an instance where others who are similarly or even

comparatively more culpable go free. In this case, the Court need not turn a blind eye to the fact

that the government spent two trials accusing Mr. Ring of providing bribes to a half-dozen public

officials who were never charged with any offense.8 In such an instance, when the government

comes before this Court and asks for an extraordinarily long period of incarceration based upon

the alleged seriousness of the offense, the Court is right to view such a request with a healthy

dose of skepticism. Doing so is not only consistent with the exercise of common sense, it is

consistent with a district court’s obligation to impose a just and fair sentence.

The Court has suggested it might not be allowed to take that fact into consideration. DE

289 at 9 n. 12 citing United States v. Scott, 631 F.3d 401, 406-07 (7th Cir. 2011). But as the

concurrence in Scott noted, the holding that a district court can never consider the lack of charges

8 The Court’s analysis on this issue need not be limited simply to the failure to charge members of Congress. It is equally as telling that a number of staffers alleged to have taken “bribes” from Mr. Ring were not charged and that many other lobbyists whose behavior was identical to Mr. Ring (indeed who were on many of the same emails that the government built their case upon) were not charged either.


22

against an unindicted co-conspirator is dicta. Id. at 410-11 (Williams, J. concurring) (noting that

the issue was not briefed by the parties and not necessary to resolution of the issue before the

Court). Moreover, the suggestion that a sentencing court’s consideration of a decision not to

charge would “leav[e] the prosecutor with no meaningful discretion at all”, Id. at 406-07, seems

overly broad. The Court is not binding the government to charge, or not charge, any individual,

nor it is even forcing the government to disclose why certain charging decisions were made. The

government is free to exercise its unfettered discretion, and the Court is free to consider the

impact of that exercise of discretion in fashion a proper sentence for the person the government

did decide to charge.

More persuasive than Scott is Judge Calabresi’s concurring opinion in United States v.

Stewart, 590 F.3d 93 (2d Cir. 2009). In Stewart, a lawyer was convicted of terrorism-related

offenses. Id. at 98. Other similarly-situated individuals who engaged in similar conduct were

not charged. Id. at 159. After concurring with the rejection of Stewart’s selective prosecution

claim because the Court of Appeals’ “scope of review is [properly] limited, for ‘the decision as

to whether to prosecute generally rests within the broad discretion of the prosecutor’”, Id. at 160,

Judge Calabresi went on to note:

[t]his does not mean that unfettered (even when it is non-invidious) prosecutorial discretion over who gets charged, and for what, is categorically desirable. Quite the contrary: while prosecutorial discretion may be salutary in a wide variety of cases, when left entirely without any controls it will concentrate too much power in a single set of government actors, and they, moreover, may on occasion be subject to political pressure. The result may well be to produce disparities in the way similarly situated people are treated, disparities that our complex, Guidelines-with-district-court-discretion, system has sought to minimize. The district court's exercise of its sentencing discretion may provide the only effective way to control and diminish unjustified disparities, without operating in the blunt fashion of selective prosecution judicial review. It may reduce improper differences in treatment, without impinging on the executive's obligation to enforce the law.

***


23

There are, of course, many reasons for prosecutors to fail to bring charges or to bring lesser charges than they could have, and some of these reasons are clearly irrelevant to the proper sentence of the person who has been charged and convicted. But other reasons may be relevant because they may suggest arbitrariness and can lead to abuse--such as the political clout of some potential defendants as against others. We as appellate judges are ill-suited to distinguish between relevant and irrelevant reasons in any given case. The same cannot be said, however, for a district court judge who has presided over a whole trial in which the behavior of uncharged or undercharged parties was part and parcel of the discussion.

Id. at 160-61. For reasons set forth throughout this brief, the defense contends that a sentence of

probation is fair and reasonable given the circumstances unique to Mr. Ring’s case.

Accordingly, the Court need not necessarily consider uncharged individuals in order to impose

the sentence that the defense requests. But the command of § 18 U.S.C. 3553(a)(2)(1) to impose

a sentence that promotes respect for the law would certainly allow such a consideration to be

made.

The final prong requires the Court to consider whether a particular punishment is just. In

that regard, a punishment should consider the present circumstance of the defendant, any

collateral damage that would be caused by a given sentence, and what, if any, adversity the

defendant has suffered already as a result of the case. In this instance, Mr. Ring has suffered

significant punishment already, and a probationary sentence would best recognize that fact. His

reputation has been destroyed and he now bears the stain of felony convictions. His career as a

lobbyist, and the financial security such a career afforded him and his family, is gone and

irretrievably so. He is deeply in debt as a result of defending himself through two trials. His

marriage has been destroyed by the strain of the investigation and trial, and his children have

witnessed both the execution of a search warrant and their father’s arrest at their home. As

explained more fully above, he stands alone as the primary caretaker to his young girls, and their

future well-being is heavily dependent on his continued presence in that role. Moreover, he is


24

the primary economic provider for his family. He is presently working two jobs to try to

generate sufficient income to cover expenses. Ms. O’Brien’s letter documents the difficulty she

has faced in finding and maintaining employment, and she is presently unable to provide a level

of income necessary to cover the costs of the girls’ housing, food, and other needs. A jail

sentence would be economically crippling to the family in the immediate sense, and losing his

present employment would have a long-lasting effect on Mr. Ring and on his daughters. Taken

together, the impact of the case has already been profound, and the impact of incarceration as

further punishment would be disproportionate to the offenses for which he was convicted.

B. Adequate Deterrence to Criminal Conduct

The second prong of 18 U.S.C. § 3553(a)(2)(B) requires the Court to fashion a sentence

that is sufficient, but not greater than necessary, “to afford adequate deterrence to criminal

conduct.” This factor encompasses both specific deterrence -- deterrence of Mr. Ring himself

from the commission of future crimes, and general deterrence -- deterrence of others.

As will be discussed in greater detail in the following section, the need to specifically

deter Mr. Ring from committing future offenses should be of minimal concern to the Court. He

has no prior criminal record and, as the sentencing letters reflect, has lived an exemplary life

both before and after the period of the alleged conduct. Moreover, his letter to the Court reflects

a profoundly remorseful and introspective man who, while he maintains his innocence as to the

specific charges brought against him, has deeply considered how he progressed from an idealistic

and celebrated staffer to a rising star in the lobbying profession to the disgraced face of the

Abramoff scandal. Even if there were a remote possibility for Mr. Ring to engage in lobbying at

some future date -- a prospect that is unrealistic given the criminal record he will bear and the


25

notoriety his case has received -- there is every reason to believe that he would never again

engage in behavior like that which brought him before this Court.9

For different reasons, the Court does not need to impose a harsh penalty in order to

advance the goal of general deterrence. Mr. Ring’s case has been exhaustively covered in the

general press and also in publications geared toward Capitol Hill and the lobbying community,

such as Roll Call. As noted by Dan Walsh, a current Greenberg Traurig lobbyist and former

colleague of Mr. Ring’s, to the extent that any lobbyist previously believed that he could operate

in the gray area left open by vague and never-enforced Congressional and executive branch gift

rules free from the prospect of federal criminal prosecution, Kevin Ring has become a cautionary

tale. But more importantly, many of the practices at issue in this case, and gathered under the

nebulous cover of the honest services fraud statute pre-Skilling, are now clearly-delineated

criminal offense after the 2006 passage of the Honest Leadership and Open Government Act

(HLOGA).

In the wake of the Abramoff scandal, the HLOGA was passed to address the very

practices that were not explicitly criminalized before. Section 543 modified the Senate Standing

Rule XXXV by adopting, for the first time, specific rules regarding the provision of tickets to

entertainment and sporting events. Also for the first time, Congress applied the gift, travel and

disclosure rules to lobbyists themselves, rather than just preventing Congressional officials and

their employees from accepting those gifts. HLOGA, Section 206, codified at 2 U.S.C. § 1613.

9 While this issue is academic given the circumstances already reviewed, it is important to note than in the three years after he left the company of Mr. Abramoff and continued to lobby, Mr. Ring represented largely the same group of clients, lobbied largely the same collection of staffer, and did so without access to unlimited expense accounts or suite tickets at local entertainment venues. The government has not alleged that during that time period Mr. Ring engaged in any type of illegal activity and the evidence showed that Mr. Ring continued to achieve exceptional results for his lobbying clients.


26

That provision expressly prohibits private citizen lobbyists from “mak[ing] a gift or provid[ing]

travel to a covered legislative branch official if the person has knowledge that the gift or travel

may not by accepted by that covered legislative branch official under the Rules of the House of

Representatives or the Standing Rules of the Senate (as the case may be).” Id. The HLOGA also

added a provision requiring lobbyists to certify on a semi-annual basis that they are familiar with

the House and Senate Rules on gifts and travel, and have not provided or offered such gifts or

travel in violation of those rules. HLOGA, Section 203(a), now codified as 2 U.S.C.

§ 1604(d)(1)(G).

Most importantly, Section 211(b) of the Act added a new criminal provision imposing up

to a five year sentence for the knowing and corrupt failure to comply with the act. That criminal

provision is now codified at 2 U.S.C. § 1606(b). Prior to the adoption of this provision, no

criminal penalties existed for the violation of the gift, travel and financial disclosure rules. The

criminal provisions took effect on the date of enactment, September 14, 2007, and apply to

conduct that occurs on or after that date. HLOGA, Section 211(b).

Notably, even though the HLOGA contained a “sense of Congress” provision relating to

the employment of Congressional spouses and family members, the HLOGA did not go so far as

to preclude a lobbyist from employing the spouse of a member.

As recounted in the letter to the Court of Richard Hibey, early on in Mr. Ring’s

cooperation with the government, the Chief of the Public Integrity Section at the Department of

Justice said they were intent on changing the way lobbying was conducted in Washington, D.C.

Setting aside the question of whether it is fair or just to change an industry’s practices on the

back on a single individual, those changes have been implemented. Between the cautionary tale

that Mr. Ring’s case has become and the passage of new laws, the general deterrence goal has


27

been more than adequately achieved. This Court does not need to sentence Mr. Ring to an

unfairly punitive sentence in order to further publish that message.

C. Protection of the Public and the Need for Rehabilitation

For the reasons set forth above, Mr. Ring does not need to be deterred from future

criminal conduct. Accordingly, it cannot be meaningfully argued that the Court should impose

an incarcerative sentence in order to protect the public or to somehow “rehabilitate” him. Any

doubt on those issues should be laid to rest by what Mr. Ring has done since leaving lobbying.

At both FAMM and the Constitution Project, Mr. Ring has thrown himself into the work

of nonprofit organizations and provided great benefit through his energy and creativity. More

importantly, he has made strong advocates of leaders at both organizations because of his

integrity, commitment to his children, and his optimism. Mr. Ring has not allowed his personal

misfortune or the weight of this prosecution to distract him from his obligations to these two

organizations. His accomplishments and good works belie any suggestion that he is in need of

rehabilitation or somehow presents a danger to the public.

D. Provision of Needed Correctional Treatment

Mr. Ring has no need for “educational or vocational training, medical care, or other

correctional treatment,” 18 U.S.C. § 3553(a)(2)(D), and there is little to consider with regard to

this subsection except for one observation. When Mr. Ring was asked by Probation Officer

Renee Moses-Gregory whether he would benefit from alcohol treatment, he declined. Mr. Ring

takes great pride in his eight years of sobriety, has never sought to use it to excuse his conduct,

and true to his character, does not now look to exploit it to seek a reduction in a potential

punishment.


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IX. FINE

The PSR correctly concludes that “[u]pon review of the defendant’s financial profile and

the need for him to support two minor children, it does not appear he has the ability to pay an

immediate fine. The Court may determine that in lieu of a fine the defendant perform community

service.” DE 259 at 26. The economic cost to Mr. Ring of exercising his right to trial has been

steep. In addition to the $1.5 million he owes in legal fees (over $200,000 of which were

incurred during Mr. Ring’s voluntary cooperation with the government) and the $650,000 he

owes his brother to repay legal costs, Mr. Ring incurred other significant trial-related costs, such

as those incurred for full-day pre-kindergarten tuition and other child care required to allow Mr.

Ring to prepare for and attend two trials. Those costs, coupled with the loss in potential future

earnings that will accompany the loss of his law license and his felony convictions suggest that

Mr. Ring not only cannot afford a fine, but that he has endured a life-altering financial burden

from which he might never recover.

X. IF THE COURT DOES NOT IMPOSE PROBATION, IT SHOULD FORMULATE A SENTENCE INVOLVING ALTERNATIVES TO INCARCERATION

As discussed above, a sentence of 60 months probation is the most appropriate sentence

when all of the factors of 18 U.S.C. § 3553 are considered. If the Court agrees, it need not reach

this section of the memorandum. However, if the Court determines that something beyond a

probationary sentence is necessary, it should formulate a sentence that includes alternatives to

incarceration, similar to the sentences imposed forMark Zachares and Ms. Copland -- other

public officials who each violated their fiduciary duties to the public, and pleaded guilty to

honest services fraud.

For Mr. Zachares, the Court imposed a probationary term with an additional 24 days in

jail on the weekends. Imposing a similar sentence for Mr. Ring would provide an additional


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level of punishment, while at the same time allowing Mr. Ring to continue in his role as the

primary caretaker to his daughters. For Ms. Copland, the Court imposed a probationary term as

well as 75 days in halfway house and 75 days home detention. The home confinement prong of

that type of sentence would provide an additional measure of punishment, while at the same time

allowing Mr. Ring to continue to serve as the primary caretaker for his daughters during that

period. Moreover, it would allow Mr. Ring to maintain his employment and thus continue to

provide the economic support that his daughters presently rely upon. Should the Court impose a

period of home detention, it may also choose to require Mr. Ring to perform a lengthy amount of

community service as well. Mr. Ring’s current position with FAMM itself involves community

service, but the Court could order Mr. Ring to perform similar services to other public interest

groups at no pay. By performing such service, Mr. Ring could repay the public for any injuries

caused by his offenses -- a fitting sentence given the nature of the charges. Moreover, the letters

attached to this submission make clear that the public would be well-served by such a sentence

as it would gain access to Mr. Ring’s substantial talents free of charge.

XI. IF THE COURT IMPOSES ANY TERM OF IMPRISONMENT IT SHOULD ALLOW MR. RING TO REMAIN ON RELEASE STATUS PENDING APPEAL

A probationary sentence, particularly one accompanied by other alternatives to

incarceration in a Bureau of Prisons facility, satisfies the sentencing goals of 18 U.S.C. § 3553.

Any additional sentence would impose more punishment than necessary to meet the objectives of

the statute. If the Court disagrees, however, it should also order Mr. Ring’s release pending

appeal as he poses no flight risk or danger and his appeal will raise substantial questions of first

impression.


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Congress has directed that “a person who has been found guilty of an offense and

sentenced to a term of imprisonment, and who has filed an appeal,” should be released on bail if

a judicial officer finds:

(A) “clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released; [and]

(B) “that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.”

18 U.S.C. § 3143(b)(1); see also United States v. Quinn, 416 F. Supp. 2d 133, 135 (D.D.C.

2006). When these two requirements are satisfied, the Court “‘shall order the release of the

person pending resolution of the appeal.” Id. Mr. Ring satisfies this standard.

A. Mr. Ring Does Not Pose A Flight Risk Or A Danger To Others

The government has never contended that Mr. Ring is a flight-risk or a danger to others,

and correctly so. The charges against Mr. Ring did not involve violence, and these are his first

alleged offenses. For the entirety of the investigation, including the more than three years since

his indictment, Mr. Ring has never attempted to flee, never missed a court appearance, and

timely reported to pre-trial services and pre-sentence officials as mandated by the Court.

Mr. Ring has every intention of continuing this conduct, both because it is the honorable thing to

do and because he desires to pursue his legal rights to clear his good name -- as he has been

doing for some seven years -- and it would be directly contrary to these interests for him to flee.

Nor is there any possibility of his doing so, in light of his substantial ties to the community. As

the many letters submitted to the Court make clear, Mr. Ring is the primary caretaker for two

small children, has lived in the area for nearly two decades, owns a home in this area, and works


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locally for two non-profit organizations. The evidence demonstrates beyond a reasonable doubt

that Mr. Ring does not pose a flight risk or danger to others.

B. Mr. Ring’s Appeal Is Not For the Purposes of Delay and Raises Several Substantial Questions of Law and Fact That Would Provide Material Relief on Appeal

There also can be no doubt that this appeal is not being pursued for purposes of delay:

Mr. Ring is pursuing an appeal to vindicate his reputation and to undo what he believes to be an

unjust verdict. The issues Mr. Ring intends to raise on appeal are substantial and ones on which

reasonable jurists can and may well disagree. Of course, Mr. Ring’s burden is not to convince

this Court that it was wrong -- he merely must show that reasonable jurists may disagree with the

Court on appeal. As the Third Circuit has explained,

Judges do not knowingly leave substantial errors uncorrected, or deliberately misconstrue applicable precedent. Thus, it would have been capricious of Congress to have conditioned bail only on the willingness of a trial judge to certify his or her own error. For a similar reason, the phrase “likely to result in reversal” cannot reasonably be construed to require the district court to predict the probability of reversal. United States v. Miller, 753 F. 2d 19, 23 (3d Cir. 1985).

Accordingly, the “substantial question” standard does not require the district court to find

that it committed reversible error,” United States v. Pollard, 778 F.2d 1177, 1181-82 (6th Cir.

1985), or even that the “defendant has shown a likelihood of success on the merits of the

appeal.” Quinn, 416 F. Supp. 2d at 136. Rather, as the D.C. Circuit has made clear, § 3143(b)

simply requires the district court to find that a single one of Defendant’s issues on appeal

presents a “close question or one that very well could be decided the other way.” United States

v. Perholtz, 836 F.2d 554, 556 (D.C. Cir. 1987) (citing cases from the First, Second, Fifth, Sixth,

Seventh, Eighth, Tenth and Eleventh Circuits).

Mr. Ring’s case satisfies this standard, particularly in light of the novelty and complexity

of the questions raised by his case -- questions that relate to the critical issue of Mr. Ring’s intent


32

when he, as a lobbyist, provided common forms of hospitality to public officials -- conduct that

was widespread in Washington during the relevant era, and by no means limited to what the

government labeled as “Team Abramoff.”

As the Court is aware, this jury was the first10 in the United States to determine whether a

registered federal lobbyist committed honest services fraud for conduct that was, under any view

of the evidence, intricately intertwined with legal lobbying efforts. It was also one of the first

cases to go to trial after the Supreme Court substantially narrowed the honest services fraud law

in United States v. Skilling, 130 S. Ct. 2896, 2931 (2010). Not surprisingly, this novel case raises

several substantial issues of first impression for review by the Court of Appeals:

1. Whether evidence related to constitutionally-protected campaign contributions

was properly admitted on the issue of Mr. Ring’s intent in the absence of a showing that such

evidence was part of an explicit quid pro quo.

2. Whether the explicit quid pro quo standard of McCormick v. United States, 500

U.S. 251 (1991), should have applied to a prosecution of behavior connected to lobbying, a First

Amendment-protected activity, especially once campaign contribution evidence was allowed in

on the issue of the defendant’s intent.

3. Whether the government’s evidence of bribery is sufficient under Skilling, despite

the fact that any proof of an implicit quid pro quo is substantially less than in any honest services

fraud case approved of by the Supreme Court.

10 It was the second to try. The fact that Mr. Ring’s first trial ended with a conscientious and diligent jury split evenly down the middle on virtually all counts and near acquittal on the allegations about the Julie Doolittle job further proves the complicated nature of the case and the evidence.


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4. Whether the conduct by Mr. Coughlin that formed the basis of the gratuities count

-- forwarding an email concerning immigration applications to the correct department --

constitutes an official act within the meaning of Valdes.

5. Whether the government’s repeated misstatements of the intent standard to the

jury, despite multiple motions in limine on the subject, warrant a new trial.

The issues in this case have rarely been explored by other Courts of Appeals around the

country. As the Court is aware, the only honest services fraud case involving a bona fide

registered lobbyist such as Mr. Ring, facing charges of excessive use of traditional tools of

hospitality, were the two opinions by the First Circuit in United States v. Sawyer, 239 F.3d 31

(1st Cir. 2001); United States v. Sawyer, 85 F.3d 713 (1st Cir. 1996), in which the First Circuit

ultimately upheld the conviction of a bona fide lobbyist who had pleaded guilty to honest

services fraud (and been sentenced to probation) under a theory of excessive hospitality. The

decision in that case resulted in multiple opinions and provided little guidance as to the

controlling legal standard. And that decision was even before the Supreme Court’s decision in

Skilling limiting the scope of the honest services fraud law. While the Court ultimately resolved

these issues against Mr. Ring (as is the case in all motions for release pending appeal), there can

be no doubt that they are precisely the sorts of novel and complex issues that Congress had in

mind when it passed the “substantiality” standard.

The sentencing in this case also posed several issues involving the Sentencing Guidelines

that meet the second prong of Section 3143, as they are both substantial and, if successful, likely

to result in a decrease of Mr. Ring’s sentence. Those issues were the subject of extensive

briefing ordered by the Court, several hours of argument, and a detailed, 42-page memorandum

opinion by the Court. During all of these proceedings, the Court noted (as it did several times


34

during the trial) that this case presents a host of complex and interesting legal questions. While

the defense has no doubt that the Court did its level-best to resolve such questions, these sorts of

issues are also precisely the ones that can and do meet the substantiality standard of 18 U.S.C.

§ 3143.

Finally, the Court should order Mr. Ring’s release pending appeal so that he can assist in

its preparation. Mr. Ring has participated extensively in his own defense, and permitting his

release pending appeal would allow him to continue on his first appeal as a matter of right by

making it much more logistically practical for him to do so than if he were incarcerated in a BOP

facility.

XII. IF THE COURT IMPOSES A TERM OF IMPRISONMENT, IT SHOULD RECOMMEND THAT BOP DESIGNATE MR. RING FOR AN APPROPRIATE FACILITY TO MINIMIZE THE EFFECT OF HIS INCARCERATION ON HIS SMALL CHILDREN AND SO THAT HE CAN ASSIST IN THE PREPARATION OF HIS APPEAL

Regardless of whether the Court orders Mr. Ring’s release pending any appeal, if it

imposes a term of incarceration it should also include a specific recommendation as to the place

of confinement, in order to ensure that any punishment is no greater than necessary and to

protect Mr. Ring’s ability to assist in the preparation of his appeal. Although a recommendation

of a particular BOP facility is just that, the BOP follows judicial recommendations over 85% of

the time, and is required to consider a judge’s recommendation. See 18 U.S.C. § 3621(b)(4)(B).

In addition, pursuant to Rule 38(b) of the Federal Rules of Criminal Procedure, when the court of

conviction recommends that the inmate be retained in a place of confinement which will allow

the inmate to participate in the preparation of the appeal, the BOP will make every effort to place

the inmate in such a facility. If there is a reason not to place the inmate in that facility, the BOP

calls the matter to the attention of the court and attempts to arrive at an acceptable place of

confinement.


35

The most important consideration in any recommendation would be to ensure that

Mr. Ring is placed in an appropriate facility within a three hour drive from Washington, D.C.

Doing so would mitigate the impact of his incarceration on his small children and would

decrease any interference with his ability to assist in the preparation of his appeal. Using these

criteria, the most appropriate facilities are (1) the Federal Prison Camp at Cumberland,

Maryland; (2) the Federal Prison Camp at Petersburg, Virginia, or (3) the Federal Prison Camp at

Fairton, New Jersey, in that order. Each facility is within a three hour drive of Washington, and

offers Prison camp facilities that are appropriate to Mr. Ring’s lack of any prior history and non-

violent offense. In preparing any judgment of conviction that includes a term of incarceration,

the Court should reference its recommendation, including the names of the specific

recommended facilities. This will ensure that, if one or more of the facilities are not available,

the Bureau of Prisons will have other recommended options from which to choose.

In the event that the Court imposes a term of incarceration and does not grant Mr. Ring

bond pending appeal, it should include in its Order a self-surrender date no earlier than January

2, 2012. Mr. Ring’s success in shielding his daughters from knowledge about his trials or the

consequences of conviction means that he will need sufficient time to minimize its impact of his

removal from their home. This will include settling the girls’ living situation, securing the

necessary financial support for them during his absence, arranging for necessary professional

counseling and academic support, and other tasks related to ensuring that the necessary affairs

are in order to limit the collateral damage to the girls.


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XIII. CONCLUSION

For the foregoing reasons, we ask the Court to sentence Mr. Ring to a 60 month term of

probation.

Respectfully submitted,

/s/ Andrew T. Wise 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) 626-5801

Dated: September 30, 2011


Case 1:08-cr-00274-ESH Document 290-1 Filed 09/30/11 Page 1 of 111

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