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 ...