United States v. Kimbrew, No. 18-50251 (9th Cir. 2019)
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The Ninth Circuit affirmed defendant's conviction for bribery of a public official under 18 U.S.C. 201(b)(2)(A) where defendant, while working as a field representative for a congresswoman, took money from an undercover agent in exchange for a promise that he made as a federal public official. In this case, defendant promised to make a marijuana dispensary's permitting problems "go away" in exchange for $5,000.
The panel held that defendant's conviction was supported by sufficient evidence where a rational jury could have reasonably concluded that defendant in fact had the ability to exert the promised influence. The panel rejected defendant's contention that because marijuana dispensaries were categorically unlawful in Compton, and it would have been impossible for him to help secure an operating permit, there was no "official act." Rather, the panel stated that a bribe tied to a contingency was no less a bribe. The panel explained that the evidence supported the jury's conclusion that defendant could have exerted influence to help obtain the promised permit at a later date. The panel wrote that it was true the contingency never came to be, and the dispensary got shot down, but section 201 liability did not depend on an outcome; the offense was complete at the moment of agreement, and that agreement need not even be accompanied by the bribe recipient's genuine intentions to follow through. Regardless, the panel held that the prosecution was not required to prove that defendant could achieve the outcome promised.
Court Description: Criminal Law The panel affirmed a conviction for bribery of a public official, in violation of 18 U.S.C. § 201(b)(2)(A), in a case in which the defendant, while working as a field representative for a congresswoman, took money from an undercover agent—posing as an investor and partner of a medical marijuana dispensary—in exchange for the defendant’s promise to make the dispensary’s permitting problems go away. The defendant contended that the government failed to prove that he could make good on his promises, and therefore he did not commit an “official act” within the meaning of the bribery statute. The panel held that a rational jury could have reasonably concluded that the defendant had the ability to exert the promised influence over the congresswoman and the Compton, California City Attorney. The panel rejected the defendant’s contention that because marijuana dispensaries were categorically unlawful in Compton, and it would have been impossible for him to help secure an operating permit, there was no “official act.” Explaining that a bribe tied to a contingency is no less a bribe, the panel held that the evidence supports the jury’s conclusion that the defendant— who represented to the undercover agent that plans were underway to permit a limited number of marijuana UNITED STATES V. KIMBREW 3 dispensaries to operate in the City—could have exerted influence to help obtain the promised permit at a later date. The panel wrote that § 201 liability does not depend on an outcome; the offense is complete at the moment of agreement, and that agreement need not be accompanied by the bribe recipient’s genuine intentions to follow through. The panel wrote that the prosecution was not in any event required to prove that the defendant could achieve the outcome he promised. The panel addressed other arguments in a concurrently filed memorandum disposition.
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