November 16, 2023 | LA Focus Op-Ed
By Mansfield Collins, Esq.
Dr. Mark Ridley-Thomas (MRT) is free on bail pending appeal of his conviction and sentence to the Ninth Circuit. During his sentencing hearing in August, Judge Dale S. Fischer initially ordered MRT to surrender on his 69th birthday, November 6, to begin a 42 month long sentence for conviction on charges related to alleged fraud, bribery and conspiracy. At defense counsel’s request, she changed the surrender date one week later to November 13th.
When the U.S. Federal judge presiding over Dr. Ridley-Thomas’s trial issued the order to permit MRT bail pending appeal on the same day (October 5th) prosecutors and defense counsel submitted their joint request to do so, the judge’s decision came as a surprise to most observers of the case.
Such orders are rare. Prosecutors usually oppose them. Bail pending appeal means MRT will be free on bail for the duration of his appeal. Appellate counsel can now communicate far more freely with their client and develop the appeal without the burden of access to MRT, travel expense or fear of compromising privileged conversations that may occur when their client is held within incarcerated settings.
The basic facts of the judge’s decision are well known. The parties agreed that MRT constituted no flight risk and no danger to public safety. They also agreed that there was enough evidence in the trial record that Dr. Ridley-Thomas could raise “substantial questions” — questions that are legally “debatable” on appeal that could potentially result in reversal of his conviction, a new trial or a substantially reduced sentence.
MRT’s defense counsel presented ten such “substantial questions” in their “motion pending appeal brief” filed early last month. Among others, these include unique and novel applications of federal honest services fraud statutes, materiality, and confusing interpretation of breaches of fiduciary duty and conflicts of interest.
In this stage of the case, MRT’s new appellate counsel legal team will take over. The appellate team includes veteran lawyers with years of practice before the Ninth Circuit as well as the U.C. Berkeley School of Law dean and a former Ninth Circuit judge. The team is unlikely to pursue all ten issues. They will strategically select from the issues in the “bail pending appeal” brief capable of generating favorable consideration from Ninth Circuit judges. In the process, they will use the trial court’s existing record to establish their own narrative that counters the prosecution’s case — that Mark Ridley-Thomas conspired to exchange his vote on one unanimously approved Los Angeles County contract he previously supported for a $100,000 donation to a community-based non-profit. The funds originated from a ballot committee MRT controlled and were legally made to USC.
One issue — the judge’s ruling that permitted the prosecution to remove from the jury pool two Black women over defense counsel’s objections — will most certainly be raised. Known as a “Batson” challenge, this issue is among the most substantial questions his appellate team can raise. It highlights the role race played in the case of USA v. Mark Ridley-Thomas. By using its peremptory challenges to remove the only two Black female jurors, the government simultaneously denied MRT the right to a trial by his peers, and the right of the two Black women to sit in judgment of him as peers and to impartially weigh the evidence for and against the defendant. The Batson challenge underscores what many trial observers claim is the subtle exploitation of implicit bias in the legal system.
When combined with whether the “official act” the prosecution claimed met the requirement for honest services fraud given the uniqueness of the facts surrounding the charges (i.e. the non-controversial character of his vote on a contract extension negotiated by others and the legality of the contributions in question), other issues about the investigation, indictment, propagation of disinformation, trial and sentence emerge. For example, the bail pending appeal brief questions whether a loss of one’s own funds can constitute a bribe at all. After all, the $100,000 sponsorship of the community non-profit originated from a legal, properly disclosed $100,000 contribution from funds controlled by MRT. Neither he nor anyone else associated with the case materially benefited from the transaction begging the question, who benefited?
Another “substantial question” that could be explored on appeal is what the threshold value of the (Telehealth) contract in question was, since the extension appropriated no new funding beyond what was left over from the original contract. The university had previously sought on average $8,750 per year in reimbursement under the terms of the contract, not the “millions” of dollars the government claimed in its indictment. The government never introduced any evidence that in the year following the contract extension’s adoption, U.S.C. sought any additional reimbursement. Yet the value of the contract extension formed the basis for the government’s sentencing calculation, despite the absence of any net increase in the amount of funding available and no proof that U.S.C. ever sought reimbursement for any services rendered.
Dr. Mark Ridley-Thomas’s criminal defense counsel left a significant trial record full of issues his new appellate counsel will be able to argue when they file their Ninth Circuit brief on or by January 26, 2024. It is no wonder the government chose not to reply to the motion for bail pending appeal, but instead opted to jointly ask the judge to grant the request. It is they who are on the defensive now.
After demanding an even harsher sentence than the neutral staff in the Office of Probation recommended, neither the judge nor United States Attorney’s Office (USAO) prosecutors wanted to argue MRT is a threat to public safety or a flight risk after his stellar record of public service, servant leadership and commitment to the community.
They certainly did not want to try to explain their preemption of the only two Black female jurors from the jury pool so soon after Laphonsa Butler, who wrote a character letter for MRT months before, was appointed to the United States Senate. She will, after all, take the place of the late Senator Dianne Feinstein on the Judiciary Committee, the key committee with oversight of the U.S. Department of Justice.
Government prosecutors in the USAO are on the defense. They and their record and ultimately — motivation — will enjoy the scrutiny of a higher court in what observers know is a righteous appeal of a case with dubious foundation.
EDITOR’S NOTE: Mansfield Collins is a 40-year practitioner of criminal defense and civil law in California. He is a UCLA Law School graduate.