Deconstructing the Conviction of Mark Ridley-Thomas: Part 9 – Filing With the 9th Circuit

On Thursday, January 25,  the team of five appellate attorneys who are now representing Mark Ridley-Thomas filed their 102-page brief in order to appeal their client’s conviction with the United States Court of Appeals for the Ninth Circuit. 

The arguments made in the newly-filed brief, which you can find here, fall into three general categories.

Yet, to better understand the legal points made in the appeal, it helps to be reminded of the government’s original 19 charges, and which of those charges comprised the jury’s seven-count guilty verdict last March.

A quick history of the case and the conviction

In the indictment filed by federal prosecutors on Oct. 13, 2021, the government alleged a bribery and corruption scheme in which Ridley-Thomas — then a member of the Los Angeles County Board of Supervisors — steered a series of lucrative county contracts and, in one case, an allegedly potentially multi-million dollar contract amendment, to USC’s Suzanne Dworak-Peck School of Social Work. 

According to the feds, MRT — as Ridley-Thomas is often known — did so at the request of Marilyn Flynn, the School of Social Work’s long-time dean, who was reportedly worried about the cash flow of the school that she had overseen since 1997.

In the three-week trial, the government’s prosecutors described how, in return for what the feds claimed were high-ticket county contracts (which wasn’t at all the case, as we discovered), Dean Flynn did two major favors of her own for the well-known policymaker.

First of all, she helped one of Mark Ridley-Thomas’s twin sons, Sebastian Ridley-Thomas, to get a scholarship for a master’s degree in social work at USC. At the same time, the younger Ridley-Thomas applied for a part-time job as a non-tenured adjunct professor at the Dworak-Peck School of Social Work and also the Price School of Public Policy, with which Flynn assisted.

Sebastian Ridley-Thomas was arguably not an illogical choice for such a position. At the time he initially talked to Dean Flynn and USC about his hope of going back to school for an advanced degree while teaching part-time, it was mid-May of 2017, and he was one of the youngest members of the California state legislature, having been elected at 26 to represent the state’s 54th assembly district in a special election in 2013.  

He was re-elected in 2014, and again in 2016. During the years in between, he was on prestigious legislative committees, and among his accomplishments were some youth-related bills, such as AB 1299, which improved the delivery of mental health services to youth in foster care. All of this made him a unique representative of a new generation of African American state lawmakers.

Furthermore, as is true with a long list of private universities, hiring people who are public figures of one kind or another as non-tenure track professors of some sort, was not an unusual policy at USC.   

Mayor Karen Bass received a deal that was identical to that of Sebastian Ridley-Thomas, including the part-time professorship, which Dean Flynn also facilitated.  

“You don’t have to like it,” defense attorney Daralyn Durie told the jury during closing arguments. But, at private universities like USC, this is how things are routinely done.

Ultimately, the jury agreed with the defense’s view of the matter.

Yet, according to the prosecution’s case, the application for a scholarship and the part-time adjunct professorship was one of two quid pro quo favors Flynn performed that benefited Mark Ridley-Thomas and his son.

The second of those two alleged favors occurred in the spring of 2018, after the younger Ridley- Thomas had resigned from the state legislature, was attending USC, and had started a non-profit organization in order to do polling and other research regarding Black voter trends, which was reportedly also part of his main project for his master’s degree.

Like many non-profit entities, the new organization the younger Ridley-Thomas started was not itself a 501(c)(3).

Acquiring non-profit status isn’t difficult, but it takes a while. As a consequence, many would-be non-profits instead go with what is known as a “fiscal sponsor,” which umbrellas down its own non-profit status to the smaller organization, while also offering various administrative services.  The sponsored organization, in turn, pays for these services with a fixed percentage of the funds the smaller entity raises.

In order to help the new non-profit get started, MRT donated $100,000 from one of his campaign funds, known as the Mark Ridley-Thomas Committee for a Better L.A.  Such a donation to nonprofits which benefited his constituents, and encouraged local civic involvement was not uncommon for Ridley-Thomas. 

In any case, the fiscal sponsor for Sebastian Ridley-Thomas’s newly formed organization was United Ways of California.

The problem with this donation, according to the prosecution, was that Ridley-Thomas senior made his donation using a two-step route. MRT’s Committee for a Better LA donated $100,000 to USC’s School of Social Work. And Dean Flynn, in turn, used the same funds to make a donation to United Ways, with the designation that the donation was meant to be used by the new non-profit under the United Ways tent.  

Sebastian Ridley-Thomas was not, at the time, taking a salary from the nonprofit he had formed. The funds would be used to hire a staff member who was to work with the younger Ridley-Thomas on the polling and research.

To counter the government’s ongoing contention that the donation from MRT’s campaign fund was in any way illegal, the defense brought in elections law expert Ann Ravel of Berkeley Law School.

Post verdict, jury foreperson, Kirsi Kilpelainen told reporters, WLA included, that she and her fellow jurors believed Ravel. 

We thought the $100,000 donation was legal, she said.

Yet, foreperson Kilpelainen also told the same cluster of reporters that an email Ridley-Thomas sent to Flynn urging the dean to “act with dispatch” in routing the $100,000 to United Ways so that the employee could be hired, was a significant part of what led them to finally come to a guilty verdict.

Okay, now back to the appeal

The five attorneys who make up what appears to be a superstar appellate team (a list of whom, minus the most recently hired team member, you can find here), have what they believe are “blockbuster arguments,” said team member Alyssa Bell, when WitnessLA met her earlier this month at a South LA event known as the Empowerment Summit.

In the 102-page brief these arguments are divided into three general categories.

One of those arguments pertains to the lynchpin of the 19 charges filed by federal prosecutors against Ridley-Thomas.

 That lynchpin charge is bribery.

There’s no Quid Pro Quo without the Quid

Here is a very brief version of what the team wrote regarding the bribery charge of which Ridley-Thomas was convicted (along with conspiracy, and five other charges that fall into the category known as honest service fraud): 

“While serving on the Los Angeles City Council,” the new filing explains, Ridley-Thomas was indicted for bribery (plus the other 18 counts), “following the discovery that then-Dean Marilyn Flynn” of the University of Southern California’s School of Social Work “made a donation to a nonprofit associated with Ridley-Thomas’s son, Sebastian Ridley-Thomas,” and did so in a way that “violated University policy.”

Flynn’s action wasn’t a big violation of USC policy. It was simply against some technical rules.  But, according to the appeal, “what should have begun and ended with an internal investigation” by the university into Flynn’s actions that violated USC policy, was “molded into a criminal prosecution untethered to federal precedent.”

In the prosecution of an elected official, wrote the appellate team, “the essence of bribery is quid pro quo corruption where the quid is personal enrichment, solicited with the intent to be influenced in the performance of official action.”

Yet, there was no personal enrichment for MRT, and there was no “intent to be influenced.”

In this section of the appeal (which starts on page 68 of the filing), the appellate team notes that the U.S. Supreme Court “has twice held that the ‘intent to influence’ requires a quid pro quo exchange.”  

In the same way, according to the appeal, each of the 17 charges of “honest services fraud,” with which Ridley-Thomas was charged, also require proof of bribery or kickbacks, “coupled with deception material to the victim.”  (According to the government’s case, the “victim,” which is a necessary element of the charges, is all of Ridley-Thomas’s constituents.)

But, again, according to the new appeal, there was no quid in the quid pro quo, which both bribery and honest service fraud legally require for a conviction.  

“The prosecution of Dr. Mark Ridley-Thomas involved none of these prerequisites,” no personal enrichment, no intent to be influenced, and no deception material to the would-be victims.”

The wrongful use of “honest services fraud”

The second of the appeal’s arguments has to do with the charges known as honest services fraud”

The seven charges of which MRT was convicted are the following:  Conspiracy, bribery, one count of “honest services mail fraud,” and four counts of  “honest services wire fraud.”

Most of us likely have at least a general grip on the meaning of bribery and conspiracy. Yet the “honest services fraud” charges are less familiar.

In Chapter 2 of this series, we briefly described the history of these lesser known charges, which the U.S. Congress added to the charging arsenal of federal prosecutors in 1988, to help them prosecute various forms of white collar crimes. 

It turned out, however, that these new charging tools were problematic to actually use, as the basics of the charges were very fuzzily defined, causing prosecutors to throw a handful of such slippery charges against the wall, so to speak, to see if any of them would stick, which precipitated a lot of appellate challenges to any convictions.

Finally,  in 2010, when considering an appeal of such charges related to the case of Enron CEO, Jeffrey Skilling, the U.S. Supreme Court narrowed the scope of honest services fraud.

Nailing down the correct definition of honest services fraud is a important part of the new filing with the 9th because, according to the appellate team, none of the government’s seventeen counts of honest services fraud charges (which resulted in a conviction for five of those counts) fit the post-Skilling definition of this category of federal charges, which are required to refer to only certain established kinds of bribery and kickback schemes, but don’t apply to Ridley-Thomas’s actions.

According to the new brief, since the actions of MRT didn’t fit the conventional—and legal— definition of honest services fraud, the feds simply came up with their own handy theory for “honest services mail fraud,” and “honest services wire fraud.” 

Honest services fraud, the appellate team wrote, “requires proof of bribery or kickbacks coupled with deception material to the victim,” which in MRT’s case would be his constituents. 

“The prosecution of Dr. Mark Ridley-Thomas involved none of these prerequisites: no personal enrichment, no intent to be influenced, and no deception material to the would-be victims.” 

To make matters worse, according to the appellate team, given the instructions or lack thereof that the jurors were given, the jury had no way to distinguish the difference between “legitimate lobbying,” which is part of public life, “and bribery, in which a corrupt politician sells his votes to the highest bidder.”

Black women jurors and Batson

The final section of the appeal has to do with the lack of Black women jurors, and legal tool that is known as a Batson Challenge.  (WLA wrote a bit about Batson in Chapter 7.)

“Prosecutors’ discriminatory exclusion” of Black women from the jury “denied Ridley-Thomas a fair trial,” wrote the appellate team.

If provably true, this is obviously a serious issue.

The Batson Challenge is based on the 1986 case of Batson v. Kentucky, in which the U.S. Supreme Court ruled that a defendant can make a case for purposeful racial discrimination in jury selection. 

In the 1986 case, a black man named James Kirkland Batson was on trial for charges of second-degree burglary and receipt of stolen goods. During jury selection for Batson’s trial, the prosecutor used his peremptory challenges to get rid of the four potential black jurors, resulting in a jury composed of all whites. Batson was convicted on both of the charges against him.

Batson, however, appealed the matter all the way to the U.S. Supreme Court, which took the case.

In their ruling, SCOTUS found that the prosecutor’s actions violated the Equal Protection Clause of the Fourteenth Amendment, and the 6th Amendment right to an “impartial jury.”  

The ruling also held that racial discrimination in the selection of jurors not only deprives the accused of important rights during a trial, but also is devastating to the community at large because it “undermines public confidence in the fairness of our system of justice.” 

(The distressed response from the crowds of Ridley-Thomas’s friends, supporters, and constituents who showed up to any and all of his court dates, would seem to demonstrate the effect on the “community at large” that the Supremes hoped to prevent in the 1986 Batson case.)

The challenge part of a Batson challenge refers to an objection that defense attorneys may make to take issue with the government’s use of a peremptory strike to exclude a juror from the jury pool on the basis of race. 

In the newly-filed brief, the team describes how, during voir dire (jury selection) for the Ridley-Thomas case, the defense used two Bateson challenges to ask the government to offer “permissible race-neutral justifications” for the striking of two different Black women from the jury.  

Yet, when the prosecution responded, wrote the appellate attorneys, the justifications amounted to “purposeful discrimination obscured by race-neutral excuses.” And U.S. District Court Judge Dale S. Fischer, who oversaw the trial, declined to intervene.

In particular, here’s what the team wrote about the striking of one of the two Black women from the jury.

“…The government claimed that it struck Juror 1—the sole remaining Black woman in the venire—because she was ‘shaking her head,’ ‘had her head tilted downward,’ was wearing tinted sunglasses until the court asked her to take them off, and was unemployed. The defense team, who sat facing the jury box, was best positioned to observe Juror 1’s demeanor, however, and did not witness the head-shaking incident. The trial judge didn’t either. In fact, the judge complimented Juror 1’s responses to questions posed during voir dire, stating, ‘you have done a fine job of showing everybody else how this should be done.’ Nevertheless, the court summarily rejected Ridley-Thomas’s Batson challenge, finding ‘no reason to discredit the statements of the two prosecutors of what they observed.’”

And here’s why all of the above was critical, according to the appellate team.

“Only Juror 1’s race and gender bore a relationship to the charges Ridley-Thomas faced. Had she been permitted to serve, Juror 1 would have learned that the sole contract at issue in the case was the Telehealth amendment, which extended the duration of a mental health program aimed to provide much-needed services to low-income, at-risk, and predominantly minority youth in Ridley-Thomas’s district. Juror 1 was Black, unemployed, and a single mother to a teenage daughter. The prosecution’s use of her race and gender as a ‘proxy’ for “competence and impartiality” violated Ridley-Thomas’s constitutional rights.”

(The “Telehealth amendment,” which the appellate team explains on p. 10 of their filing, refers to an amendment to a pre-existing contract that came into being on March 1, 2016—well before the 2017-2018 time period that pertains to the case against Ridley-Thomas. It is this contract that was a linchpin of the government’s case. )

After the description of why the elimination of Juror 1 was potentially of significant consequence, the appellate brief concludes with the request that Ridley-Thomas’s convictions be reversed and the case remanded for entry of a judgment of acquittal. 

“At a minimum,” wrote the appellate team, “Ridley-Thomas is entitled to a new trial on all counts.”

Post Script

Next up will be the government’s reply to the January 25 filing.  After that, the appellate team will reply to the prosecution’s reply.  And eventually everyone will go to court to present the appeal to the 9th.

Well before the hearing takes place, some amicus briefs are likely to be filed, and there will be other related events and issues pertaining to Deconstructing the Conviction of Mark Ridley-Thomas that WLA will cover.

So…stay tuned.