WHERE WE STAND —Government's Case Against MRT Untethered to Federal Law

WHERE WE STAND —Government's Case Against MRT Untethered to Federal Law
Editor's Note: What follows is the Introduction to Mark Ridley-Thomas's Reply Brief filed with The United States Court of Appeals for the Ninth Circuit.

In a telling about-face, the government has chosen on appeal not to defend the foundational theories of its case. Instead, it seeks to recast or abandon the theories alleged in the indictment and argued to the jury throughout trial. That tactic amounts to a concession: Dr. Mark Ridley-Thomas’s convictions are indefensible.

From indictment through post-trial motions, the government asserted that Ridley-Thomas exchanged a vote in favor of the Telehealth amendment for what prosecutors dubbed “secret funneling”—Marilyn Flynn’s agreement to move “$100,000 from [Ridley-Thomas’s] campaign committee account through USC to a nonprofit Sebastian Ridley-Thomas was spearheading.” (6-ER-1019.) In acquitting Ridley-Thomas on twelve of nineteen counts, the jury returned a verdict that—as the government admitted and the district court found—rests solely upon the alleged “funneling”/Telehealth exchange. (1-ER-8-9; 6-ER-1037-38.) That lone-surviving, contorted quid pro quo theory is unprecedented in the history of the federal bribery and honest services fraud statutes and untethered to federal law.

Recognizing as much, the government now disclaims all reliance on its “secret funneling” theory and asserts—for the first time—that Ridley-Thomas solicited a cash bribe: a $100,000 donation of USC’s funds to PRPI. Its newly-minted claim was never presented to the jury and finds no support in the record. The “funneling” was the “thing of value” prosecutors alleged Ridley-Thomas exchanged for his vote, and its “value” was the avoidance of nepotistic optics and political fallout. That non-traditional quid has no corollary in the pre-McNally paradigm and falls outside § 1346’s circumscribed post-Skilling boundaries.

The government’s honest services fraud theory also urged that Ridley-Thomas could be convicted for deceiving USC and other third parties involved in Ridley-Thomas’s donation about matters material only to them. The “funneling” broke USC’s internal rules, and a parade of its employees testified they would have wanted to know that Flynn had agreed to use the University as a pass-through entity in funding PRPI. But the government failed to call a single witness to establish that the “funneling” was material to the Board of Supervisors or the residents of Los Angeles County. On appeal, the government admits that § 1346 penalizes only schemes to deceive and cheat the victim, and once again disclaims reliance on the third-party-deception theory it pleaded and argued. Because prosecutors presented an admittedly invalid theory to the jury, Ridley-Thomas’s convictions cannot stand. 

Finally, the government argued for Ridley-Thomas’s conviction on the theory that he “monetized” his public service by taking “a reward” that was in “any way connected with” official action. But that would be a gratuity, not a bribe, and neither § 1346 nor § 666 penalizes the acceptance of gratuities. Because the evidence showed Ridley-Thomas agreed to support the Telehealth amendment months before the “funneling” was conceived, the government could secure Ridley-Thomas’s convictions only by distorting the definition of quid pro quo exchanges. On appeal, the government again attempts to recast its trial theory, claiming prosecutors argued only that Ridley-Thomas was guilty of bribery even if the Telehealth amendment was good for the community and his support required no inducement. The record belies that claim. 

As to each of the government’s foundational theories, the record squarely refutes the revisionist history presented to this Court. Because the government cannot escape its prosecution theories, its refusal to defend those theories is effectively a concession of legal invalidity.

Ridley-Thomas’s trial was fundamentally flawed in yet another respect. The government violated Ridley-Thomas’s right to Equal Protection by striking all Black women from the jury. The government discounts the unique discrimination that Black women face on the basis of their race and gender, and claims that Black men and other minority jurors were an adequate substitute. These arguments reflect the very bias Batson prohibits, and the district court’s denial of Ridley-Thomas’s Batson challenges resulted in a miscarriage of justice. What is more, prosecutors claim on appeal that the struck jurors had defense-friendly views—assertions they never made at trial. Their post-hoc rationalizations are pretextual. 

Ridley-Thomas’s convictions are fatally deficient and neither subterfuge nor backpedaling can salvage the verdict. His convictions must be reversed.