United States v. Michael Kimbrew (9th Cir. December 2019)
Bribery – There was sufficient evidence to convict the defendant who took money from an undercover agent to perform an official act even though the defendant lacked the actual ability to exert the promised influence necessary to perform the official act, and the Government does not have to prove that a bribery defendant has the ability to achieve the promised outcome since the crime of bribery is based on the agreement, not the outcome.
Michael Kimbrew was a field representative for a congresswoman. He was convicted of bribery under 18 U.S.C. § 201 after he took money from an undercover agent in exchange for helping the agent’s medical marijuana dispensary resolve its permitting problems.
On appeal, the defendant argued that there was insufficient evidence since the Government failed to prove that the defendant had the power to “make good on his promises,” and therefore, there was no “official act.” In fact, Kimbrew argued, it would have been impossible for him to perform, since marijuana dispensaries are categorically illegal in Compton, where the agent claimed to need a permit.
The Court rejected Kimbrew’s argument, holding 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. Kimbrew had told the agent that there were plans to allow a limited number of dispensaries to operate in Compton, and the Court reasoned that the jury could have found that Kimbrew “could have exerted influence to help obtain the promised permit at a later date.” The Court concluded that “§ 201 liability does not depend on an outcome; the offense is complete at the moment of the agreement, and that agreement need not be accompanied by the bribe recipient’s genuine intentions to follow through.
On Appeal from the Central District of California
Opinion by Nguyen, joined by Miller and Vitaliano (by designation from E.D. N.Y.)