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United States v. Kimbrew

United States Court of Appeals, Ninth Circuit

December 9, 2019

United States of America, Plaintiff-Appellee,
v.
Michael Kimbrew, Defendant-Appellant.

          Argued and Submitted October 15, 2019

          Appeal from the United States District Court for the Central District of California No. 2:17-cr-00459-RGK-1 R. Gary Klausner, District Judge, Presiding

          Alyssa D. Bell (argued), Cohen Williams LLP, Los Angeles, California, for Defendant-Appellant.

          Lindsey Greer Dotson (argued), Assistant United States Attorney; L. Ashley Aull, Chief, Criminal Appeals Section; Nicola T. Hanna, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

          Before: Jacqueline H. Nguyen and Eric D. Miller, Circuit Judges, and Eric N. Vitaliano, [*] District Judge.

         SUMMARY [**]

         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 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.

          OPINION

          NGUYEN, CIRCUIT JUDGE

         Michael Kimbrew appeals his convictions and sentence for attempted extortion by an employee of the United States, in violation of 18 U.S.C. § 872, and bribery of a public official, in violation of 18 U.S.C. § 201(b)(2)(A). Kimbrew does not dispute that he took money in exchange for a promise that he made as a federal public official. He instead argues that he promised to do the ...


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