                       FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                      No. 18-50251
           Plaintiff-Appellee,
                                                 D.C. No.
                  v.                       2:17-cr-00459-RGK-1

 MICHAEL KIMBREW,
        Defendant-Appellant.                      OPINION

         Appeal from the United States District Court
            for the Central District of California
         R. Gary Klausner, District Judge, Presiding

           Argued and Submitted October 15, 2019
                    Pasadena, California

                       Filed December 9, 2019

 Before: Jacqueline H. Nguyen and Eric D. Miller, Circuit
      Judges, and Eric N. Vitaliano, * District Judge.

                    Opinion by Judge Nguyen




     *
       The Honorable Eric N. Vitaliano, United States District Judge for
the Eastern District of New York, sitting by designation.
2                 UNITED STATES V. KIMBREW

                          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

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
               UNITED STATES V. KIMBREW                    3

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.


                        COUNSEL

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.
4               UNITED STATES V. KIMBREW

                         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 impossible, so his conduct
falls outside the purview of § 201 bribery. 1 We are not
persuaded, and we affirm.

                              I.

                     BACKGROUND

    In early 2015, Kimbrew worked as a field representative
for     then-Congresswoman         Janice     Hahn      (“the
Congresswoman”).          Kimbrew        worked      in   the
Congresswoman’s Compton office, which was located
inside Compton City Hall. His job responsibilities included
“representing [the Congresswoman] . . . at a variety of
events,” “attending important . . . town hall or city council
meetings,” and “bring[ing] information back that the
[C]ongresswoman . . . could use or should be aware of.”

    Around March 2015, Kimbrew visited a medical
marijuana dispensary in Compton called Green Legendz. He
told one of the shop’s employees that the business did not
have the permits it needed to operate lawfully. He left his

    1
      We address Kimbrew’s remaining arguments in a memorandum
disposition filed concurrently with this opinion.
               UNITED STATES V. KIMBREW                   5

business card and asked the employee for the owners’
contact information. The employee testified that “it seemed
like [Kimbrew] was expecting some type of agreement,” and
that he thought Kimbrew wanted money. Kimbrew later
returned to the shop and said that, if the owners didn’t
contact him soon, he would have Green Legendz shut down.

     The owners of Green Legendz ultimately met with
Kimbrew at his office in Compton City Hall. Kimbrew
explained that Green Legendz had a permitting problem, but
he could “make all that go away.” The owners understood
Kimbrew to be asking them for money “to help Green
Legend[z] stay in business,” but no money was exchanged
at the meeting.

    Thereafter, an undercover agent (“UC”) of the Federal
Bureau of Investigation (“FBI”) contacted Kimbrew, posing
as an investor and partner of Green Legendz. The UC
arranged a meeting with Kimbrew on May 7, 2015, at
Kimbrew’s office in Compton City Hall. They discussed
Green Legendz’s lack of proper permitting and how to
prevent the business from getting shut down. Kimbrew said
that most of Compton’s dispensaries were slated to be shut
down, but there was a plan to keep five dispensaries open.
Kimbrew noted that discussions about this plan were
ongoing, as the relevant parties were still “putting all the
rules and regulations together.” The UC asked whether
Kimbrew could help arrange for Green Legendz to be one of
those five shops, and Kimbrew responded affirmatively.

   Kimbrew said that, for a $5,000 payment, he would get
Green Legendz a permit and “make sure that nobody bothers
you.” Kimbrew explained that he would talk to the City
Attorney and a local city councilmember, and the UC would
“have nothing else to worry about at that point.” Kimbrew
handed the UC his business card and told the UC that he
6               UNITED STATES V. KIMBREW

would deal with anyone who gave the UC trouble. Kimbrew
said that he wielded substantial influence due to his position:
he “overs[aw] the City of Compton” in his capacity as a
congressional staffer; he had a close relationship with city
officials, including the City Attorney; he had authority over
Code Enforcement and the Sheriff’s Department; and he had
the ear of the Congresswoman, who could get the FBI
involved in local issues.

    On May 15, 2015, the UC and Kimbrew had a follow-up
phone call. Kimbrew noted that he had not heard back from
the UC since their meeting, and that he was planning to close
down Green Legendz by the next Friday. The UC said he
had the funds to pay Kimbrew and still wanted to “do
business.” He asked to schedule another meeting, and
Kimbrew agreed.

    On May 19, 2015, the UC and Kimbrew met at a
restaurant in Compton. They discussed Green Legendz’s
permitting problem again, including a warning letter from
the City Attorney, and Kimbrew reaffirmed that “all of that
I can make go away.” He again committed to talking to the
City Attorney and to Code Enforcement to keep them from
interfering with Green Legendz’s business. At one point,
Kimbrew agreed that the $5,000 payment was “like a
kickback.” Toward the end of the meeting, Kimbrew hedged
that “I would rather not take your money today . . . because
I would rather make sure that I can deliver on my promise.”
The UC said that the funds were for Kimbrew to ensure that
the two would have “a good relationship.” Kimbrew
responded that he could “guarantee” a good relationship, that
the UC had his “undying support,” and that he would “do
everything [he] can to make sure [the UC] continue[d] to do
business.” The UC then passed $5,000 across the table,
hidden under a restaurant menu. Kimbrew accepted the
               UNITED STATES V. KIMBREW                    7

money. Nonetheless, Green Legendz was shut down by the
City a few days later.

    Kimbrew was indicted on one count of attempted
extortion by an employee of the United States, in violation
of 18 U.S.C. § 872, and one count of bribery of a public
official, in violation of 18 U.S.C. § 201(b)(2)(A). Following
a jury trial, he was found guilty on both counts. Kimbrew
moved for a judgment of acquittal under Rule 29 of the
Federal Rules of Criminal Procedure, but the motion was
denied. Kimbrew then filed a motion for reconsideration,
but that too was denied. Kimbrew was sentenced to
18 months in prison, three years of supervised release,
restitution in the amount of $5,000, and a $4,000 fine.

                             II.

                      DISCUSSION

A. Jurisdiction and Standard of Review

    We have jurisdiction under 28 U.S.C. § 1291. We
review a sufficiency of the evidence challenge de novo.
United States v. Doe, 842 F.3d 1117, 1119 (9th Cir. 2016).
We are “obliged to construe the evidence in the light most
favorable to the prosecution, and only then determine
whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010)
(en banc) (internal quotation marks and citation omitted).

B. Kimbrew’s Bribery Conviction Was Supported by
   Sufficient Evidence

   Kimbrew argues that the evidence was insufficient to
support his bribery conviction. Specifically, he contends
8               UNITED STATES V. KIMBREW

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.
Kimbrew’s argument is both factually and legally incorrect.

    A public official commits bribery if he “corruptly
demands, seeks, receives, accepts, or agrees to receive or
accept anything of value . . . in return for . . . being
influenced in the performance of any official act.” 18 U.S.C.
§ 201(b)(2)(A). An official act is “any decision or action on
any question, matter, cause, suit, proceeding or controversy,
which may at any time be pending, or which may by law be
brought before any public official, in such official’s official
capacity, or in such official’s place of trust or profit.”
18 U.S.C. § 201(a)(3).

    The bribe recipient need not be the final decisionmaker.
McDonnell v. United States, 136 S. Ct. 2355, 2370 (2016).
“A public official may also make a decision or take an action
on a ‘question, matter, cause, suit, proceeding or
controversy’ by using his official position to exert pressure
on another official to perform an ‘official act.’” Id. So too,
a public official may be liable under § 201 if he “uses his
official position to provide advice to another official,
knowing or intending that such advice will form the basis for
an ‘official act’ by another official.” Id. Moreover, the bribe
recipient “is not required to actually make a decision or take
an action on a ‘question, matter, cause, suit, proceeding or
controversy’; it is enough that the official agree to do so.”
Id. at 2370–71. It is immaterial whether the bribe recipient
ever intended to follow through with his end of the bargain,
so long as he agreed to perform the official act. Id.

    Kimbrew contends that the government lacked evidence
that he actually had any influence over the City Attorney or
the Congresswoman. On the contrary, the evidence
                UNITED STATES V. KIMBREW                     9

presented at trial satisfies the relatively low burden
applicable on sufficiency of the evidence review. See Nevils,
598 F.3d. at 1161, 1164. It is immaterial that the evidence
was disputed, because we must view the evidence in the light
most favorable to the prosecution and presume that the jury
resolved all conflicts in the record against the defendant. See
id.

    The evidence shows that Kimbrew and the City Attorney
knew each other, and that both worked out of Compton City
Hall. Kimbrew acted as the Congresswoman’s liaison in
certain local affairs and attended city council meetings as her
representative. Although the City Attorney denied that
Kimbrew had any influence over him, the jury also heard
recorded conversations in which Kimbrew attested that he
did in fact have such influence. This factual dispute was a
matter to be resolved by the jury, which could have
reasonably believed Kimbrew’s representations over the
City Attorney’s denial. The jury could have doubted that the
City Attorney would implicate Kimbrew, particularly when
doing so might cast a shadow on his own reputation as well.
So too, the jury may have reasonably believed that planned
testimony was less likely to be sincere than a surreptitiously
recorded conversation. On this record, a rational jury could
have reasonably concluded that Kimbrew in fact had the
ability to exert the promised influence.

    Similarly, the jury could have reasonably concluded that
Kimbrew had a means of influencing the Congresswoman’s
actions. Kimbrew served on the Congresswoman’s staff,
and he represented her within the Compton area. Green
Legendz was operating unlawfully within her district, and
Kimbrew’s job responsibilities included “bring[ing]
information back that the [C]ongresswoman . . . should be
aware of.” Based on this showing, a rational factfinder could
10              UNITED STATES V. KIMBREW

have found that Kimbrew wielded the influence he said he
did, i.e., that he could have brought the dispensary’s illicit
operation to the Congresswoman’s attention, characterized it
as a substantial problem within her district, and persuaded
her to help get it shut down.

    Finally, Kimbrew contends that it would have been
impossible for him to help secure an operating permit for
Green Legendz, because marijuana dispensaries were
categorically unlawful in the City of Compton. Thus, his
argument goes, there was no “official act,” because
permitting a dispensary “fell outside any official’s
purview[:] . . . it was not a matter either pending, or which
by law could be brought, before any public official,
anywhere.” Kimbrew concedes that he represented to the
UC that plans were underway to permit a limited number of
marijuana dispensaries to operate in the City, but he argues
that these representations were false. However, Kimbrew
does not point to any evidence—let alone irrefutable
evidence—to support his position. The jury reasonably
could have taken Kimbrew’s recorded statements at face-
value, and accepted as true that the City had pending plans
to permit a small number of marijuana dispensaries to
operate. Therefore, viewing the evidence in the light most
favorable to the government, the evidence supports the
jury’s conclusion that Kimbrew could have exerted
influence to help obtain the promised permit at a later date—
after the City’s plans had come to fruition.

    The statutory definition of “official act” contains broad
temporal language that indicates the question or matter at
issue need not currently be pending or capable of being
brought before a public official. See 18 U.S.C. § 201(a)(3)
(referring to questions or matters “which may at any time be
pending, or which may by law be brought before any public
                UNITED STATES V. KIMBREW                   11

official”) (emphases added). This language encompasses
scenarios in which a briber might anticipatorily seek to
induce official action relevant to a circumstance yet-to-
come. For example, on the eve of anticipated marijuana
legalization—but while its sale was still illegal—an
entrepreneur might bribe an official to “reserve” his services
to help obtain a future dispensary permit. A quid pro quo of
that nature remains a private inducement attached to the
provision of a “formal exercise of government power,” see
McDonnell, 136 S. Ct. at 2369–70, albeit a contingent one.
But a bribe tied to a contingency is no less a bribe.

    Kimbrew’s permit-related promise fits that mold.
Kimbrew represented that, in the near future, the City of
Compton would permit a small number of dispensaries to
operate. In response, the UC sought to make “arrangements”
for Green Legendz to be one of those dispensaries. Against
that backdrop, the absence of a permitting architecture at the
moment of agreement is not dispositive. It is true that the
contingency never came to be, and Green Legendz got shut
down, but § 201 liability does not depend on an outcome; the
offense is complete at the moment of agreement, and that
agreement need not even be accompanied by the bribe
recipient’s genuine intentions to follow through.

    Regardless, the prosecution was not required to prove
that Kimbrew could achieve the outcome he promised. The
relevant inquiry, instead, is whether Kimbrew agreed to
“us[e] his official position to exert pressure on another
official to perform an ‘official act,’ or to advise another
official, knowing or intending that such advice will form the
basis for an ‘official act’ by another official.” McDonnell,
136 S. Ct. at 2372; see also United States v. Hsieh Hui Mei
Chen, 754 F.2d 817, 825 (9th Cir. 1985) (concluding that “a
person may be convicted of bribery [under § 201(b)(2)] even
12              UNITED STATES V. KIMBREW

though the action requested is not within the official’s power
to perform”). Nowhere in the statute or in the governing case
law is there a requirement that the bribe recipient be able to
succeed in exerting that pressure or persuading through his
advice to realize the desired result.

    A contrary reading would run afoul of the process-
oriented, rather than results-oriented, nature of the offense.
As noted, the offense of bribery is complete upon the
agreement between the briber and the public official.
McDonnell, 136 S. Ct. at 2370–71. The Supreme Court has
emphasized that the official need not follow through to be
found guilty. Id. The official can be convicted even if he
never intended to perform the official act for which he was
bribed. Id. at 2371. In short, execution is immaterial. It
logically follows, then, that § 201 is not limited by the odds
of success of the quo at issue.

    The reach of § 201 is not unlimited. For example, the
“official act” core of § 201 carries with it a requirement that
there be a nexus between the public official’s position and
the quo he promises. But this only takes Kimbrew so far.
His official responsibilities included engaging with the local
Compton government, serving as a representative in that
community, and informing the Congresswoman of any local
activity of which she should be aware. Accordingly, the
quos at issue bore a nexus to Kimbrew’s official role.

                          *   *   *

    The case against Kimbrew was neither factually nor
legally deficient, and a rational factfinder “could have found
the essential elements of the crime beyond a reasonable
doubt.” Nevils, 598 F.3d at 1164.

     AFFIRMED.
