Filed: Jul. 10, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4019 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ROBERT F. MCDONNELL, Defendant – Appellant. - FORMER VIRGINIA ATTORNEYS GENERAL; ANDREW P. MILLER; ANTHONY FRANCIS TROY; J. MARSHALL COLEMAN; MARY SUE TERRY; STEPHEN DOUGLAS ROSENTHAL; MARK L. EARLEY; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; NANCY GERTNER, Law Professor; CHARLES J. OGLETREE, JR., Law Professor; JOHN C. JEFFRIES, JR., Law Professor; BENJAMIN TODD
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4019 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ROBERT F. MCDONNELL, Defendant – Appellant. - FORMER VIRGINIA ATTORNEYS GENERAL; ANDREW P. MILLER; ANTHONY FRANCIS TROY; J. MARSHALL COLEMAN; MARY SUE TERRY; STEPHEN DOUGLAS ROSENTHAL; MARK L. EARLEY; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; NANCY GERTNER, Law Professor; CHARLES J. OGLETREE, JR., Law Professor; JOHN C. JEFFRIES, JR., Law Professor; BENJAMIN TODD ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4019
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT F. MCDONNELL,
Defendant – Appellant.
------------------------------------
FORMER VIRGINIA ATTORNEYS GENERAL; ANDREW P. MILLER; ANTHONY
FRANCIS TROY; J. MARSHALL COLEMAN; MARY SUE TERRY; STEPHEN
DOUGLAS ROSENTHAL; MARK L. EARLEY; NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; NANCY GERTNER, Law Professor;
CHARLES J. OGLETREE, JR., Law Professor; JOHN C. JEFFRIES,
JR., Law Professor; BENJAMIN TODD JEALOUS; REPUBLICAN
GOVERNORS PUBLIC POLICY COMMITTEE; FORMER STATE ATTORNEYS
GENERAL (NON-VIRGINIA); BUSINESS LEADERS AND PUBLIC POLICY
ADVOCATES; VIRGINIA LAW PROFESSORS; FORMER FEDERAL
OFFICIALS; MEMBERS AND FORMER MEMBERS OF THE VIRGINIA
GENERAL ASSEMBLY,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:14-cr-00012-JRS-1)
Argued: May 12, 2015 Decided: July 10, 2015
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Motz and Judge King joined.
ARGUED: Noel J. Francisco, JONES DAY, Washington, D.C., for
Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: John L.
Brownlee, Daniel I. Small, Christopher M. Iaquinto, Elizabeth N.
Jochum, HOLLAND & KNIGHT LLP, Washington, D.C.; Henry W. Asbill,
Charlotte H. Taylor, James M. Burnham, Ian Samuel, JONES DAY,
Washington, D.C., for Appellant. Dana J. Boente, United States
Attorney, Ryan S. Faulconer, Assistant United States Attorney,
Raymond Hulser, Acting Chief, Public Integrity Section,
Alexandria, Virginia, Michael S. Dry, Assistant United States
Attorney, Jessica D. Aber, Assistant United States Attorney,
David V. Harbach, II, Criminal Division, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee. William H.
Hurd, Stephen C. Piepgrass, TROUTMAN SANDERS LLP, Richmond,
Virginia, for Amici Former Virginia Attorneys General Andrew P.
Miller, Anthony Francis Troy, J. Marshall Coleman, Mary Sue
Terry, Stephen Douglas Rosenthal, and Mark L. Earley. David B.
Smith, SMITH & ZIMMERMAN, PLLC, Alexandria, Virginia; John D.
Cline, LAW OFFICE OF JOHN D. CLINE, San Francisco, California,
for Amicus National Association of Criminal Defense Lawyers.
William W. Taylor, III, ZUCKERMAN SPAEDER LLP, Washington, D.C.,
for Amici Nancy Gertner, Law Professor, Charles J. Ogletree,
Jr., Law Professor, and John C. Jeffries, Jr., Law Professor.
Wyatt B. Durrette, Jr., Barrett E. Pope, Robert Rae Gordon,
DURRETTECRUMP PLC, Richmond, Virginia, for Amicus Benjamin Todd
Jealous. Charles J. Cooper, David H. Thompson, Peter A.
Patterson, John D. Ohlendorf, COOPER & KIRK, PLLC, Washington,
D.C., for Amicus Republican Governors Public Policy Committee,
a/k/a RGPPC. Brian D. Boone, Emily C. McGowan, Charlotte, North
Carolina, Edward T. Kang, ALSTON & BIRD LLP, Washington, D.C.,
for Amici Former State Attorneys General (Non-Virginia).
Gregory N. Stillman, Norfolk, Virginia, Edward J. Fuhr,
Johnathan E. Schronce, Richmond, Virginia, William J. Haun,
HUNTON & WILLIAMS LLP, Washington, D.C., for Amici Business
Leaders and Public Policy Advocates. Timothy M. Richardson,
POOLE MAHONEY PC, Virginia Beach, Virginia, for Amici Virginia
Law Professors. William J. Kilberg, Thomas G. Hungar, Helgi C.
Walker, David Debold, Katherine C. Yarger, Jacob T. Spencer,
GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Amici Former
Federal Officials. John S. Davis, Joseph R. Pope, Jonathan T.
Lucier, WILLIAMS MULLEN, Richmond, Virginia, for Amici Members
and Former Members of the Virginia General Assembly.
2
THACKER, Circuit Judge:
Over the course of five weeks of trial, federal
prosecutors sought to prove that former Governor of Virginia
Robert F. McDonnell (“Appellant”) and his wife, Maureen
McDonnell, accepted money and lavish gifts in exchange for
efforts to assist a Virginia company in securing state
university testing of a dietary supplement the company had
developed. The jury found Appellant guilty of eleven counts of
corruption and not guilty of two counts of making a false
statement. 1
Appellant appeals his convictions, alleging a
multitude of errors. Chiefly, Appellant challenges the jury
instructions -- claiming the district court misstated the law --
and the sufficiency of the evidence presented against him. He
also argues that his trial should have been severed from his
wife’s trial; that the district court’s voir dire questioning
violated his Sixth Amendment rights; and that the district court
made several erroneous evidentiary rulings. Upon consideration
of each of Appellant’s contentions, we conclude that the jury’s
1 The jury also found Mrs. McDonnell guilty of eight counts
of corruption and one count of obstruction of an official
proceeding. The jury found her not guilty of three counts of
corruption and one count of making a false statement. Her
appeal is not at issue here, as it is pursued separately.
3
verdict must stand and that the district court’s judgment should
be affirmed.
I.
A.
On November 3, 2009, Appellant was elected the
seventy-first Governor of Virginia. From the outset, he made
economic development and the promotion of Virginia businesses
priorities of his administration.
The economic downturn preceding the election had taken
a personal toll on Appellant. Mobo Real Estate Partners LLC
(“Mobo”), a business operated by Appellant and his sister, was
losing money on a pair of beachfront rental properties in
Virginia Beach. When Appellant became Governor, he and his
sister were losing more than $40,000 each year. By 2011, they
owed more than $11,000 per month in loan payments. Each year
their loan balance increased, and by 2012, the outstanding
balance was nearing $2.5 million.
Appellant was also piling up credit card debt. In
January 2010, the month of his inauguration, Appellant and his
wife had a combined credit card balance exceeding $74,000.
Eight months later, in September 2010, the combined balance
exceeded $90,000.
4
B.
While Appellant was campaigning on promises of
economic development in Virginia, Virginia-based Star Scientific
Inc. (“Star”) and its founder and chief executive officer Jonnie
Williams were close to launching a new product: Anatabloc. For
years, Star had been evaluating the curative potential of
anatabine, an alkaloid found in the tobacco plant, focusing on
whether it could be used to treat chronic inflammation.
Anatabloc was one of the anatabine-based dietary supplements
Star developed as a result of these years of evaluation.
Star wanted the Food and Drug Administration to
classify Anatabloc as a pharmaceutical. Otherwise, it would
have to market Anatabloc as a nutraceutical, which generally has
less profit potential than a pharmaceutical. Classification as
a pharmaceutical would require expensive testing, clinical
trials, and studies. But Star did not have the financial
wherewithal to conduct the necessary testing, trials, and
studies on its own. It needed outside research and funding.
C.
Appellant and Williams first met in December 2009 --
shortly after Appellant’s election to the governorship but
before his inauguration. Appellant had used Williams’s plane
during his campaign, and he wanted to thank Williams over dinner
5
in New York. 2 During dinner, Williams ordered a $5,000 bottle of
cognac and the conversation turned to the gown Appellant’s wife
would wear to Appellant’s inauguration. Williams mentioned that
he knew Oscar de la Renta and offered to purchase Mrs. McDonnell
an expensive custom dress. 3
In October 2010, Appellant and Williams crossed paths
again. This time, the two were on the same plane -- Williams’s
plane -- making their way from California to Virginia. During
the six-hour flight, Williams extolled the virtues of Anatabloc
and explained that he needed Appellant’s help to move forward
with the product:
[W]hat I did was I explained to him how I
discovered it. I gave him a basic education
on the -- on smoking, the diseases that
don’t happen with smokers and just tried to
make sure he understood, you know, what I
had discovered in this tobacco plant and
that I was going to -- what I needed from
2 Williams was one of several individuals who offered the
use of a private plane to Appellant during his campaign on an
as-needed basis. Although Appellant had used Williams’s plane
during his campaign, the two men did not meet until December
2009.
3 In the end, Williams did not purchase an inauguration
dress for Mrs. McDonnell. According to Williams, Appellant’s
chief counsel, Jacob Jasen Eige, called Williams, saying, “I
understand that you’re getting ready to purchase [Mrs.]
McDonnell a dress for the inauguration. I’m calling to let you
know that you can’t do that.” J.A. 2208 (internal quotation
marks omitted). Citations to the “J.A.” refer to the Joint
Appendix filed by the parties in this appeal.
6
him was that I needed testing and I wanted
to have this done in Virginia.
J.A. 2211.
By the end of the flight, the two agreed that
“independent testing in Virginia was a good idea.” J.A. 2211.
Appellant agreed to introduce Williams to Dr. William A. Hazel
Jr., the Commonwealth’s secretary of health and human resources.
In April 2011, Mrs. McDonnell invited Williams to join
the first couple at a political rally in New York. “I’ll have
you seated with the Governor and we can go shopping now,” Mrs.
McDonnell said, according to Williams. J.A. 2222 (internal
quotation marks omitted). So Williams took Mrs. McDonnell on a
shopping spree; they lunched and shopped at Bergdorf Goodman and
visited Oscar de la Renta and Louis Vuitton stores on Fifth
Avenue. Williams bought Mrs. McDonnell dresses and a white
leather coat from Oscar de la Renta; shoes, a purse, and a
raincoat from Louis Vuitton; and a dress from Bergdorf Goodman.
Williams spent approximately $20,000 on Mrs. McDonnell during
this shopping spree. That evening, Williams sat with Appellant
and Mrs. McDonnell during a political rally.
A few weeks later, on April 29, Williams joined
Appellant and Mrs. McDonnell for a private dinner at the
Governor’s Mansion. The discussion at dinner centered on
Anatabloc and the need for independent testing and studies.
7
Appellant, who had campaigned on promoting business in Virginia,
was “intrigued that [Star] was a Virginia company with an idea,”
and he wanted to have Anatabloc studies conducted within the
Commonwealth’s borders. J.A. 6561.
Two days after this private dinner -- on May 1,
2011 -- Mrs. McDonnell received an email via Williams. 4 The
email included a link to an article entitled “Star Scientific
Has Home Run Potential,” which discussed Star’s research and
stock. Mrs. McDonnell forwarded this email to Appellant at
12:17 p.m. Less than an hour later, Appellant texted his
sister, asking for information about loans and bank options for
their Mobo properties. Later that evening, Appellant emailed
his daughter Cailin, asking her to send him information about
the payments he still owed for her wedding.
The next day, May 2, Mrs. McDonnell and Williams met
at the Governor’s Mansion to discuss Anatabloc. However, Mrs.
McDonnell began explaining her family’s financial woes --
thoughts about filing for bankruptcy, high-interest loans, the
decline in the real estate market, and credit card debt. Then,
according to Williams, Mrs. McDonnell said, “I have a background
4 Williams did not send the email to Mrs. McDonnell.
However, the sender wrote, “Please give to the governor and his
wife as per Jonnie Williams.” G.S.A. 3. Citations to the
“G.S.A.” refer to the Supplemental Appendix filed by the
Government.
8
in nutritional supplements and I can be helpful to you with this
project, with your company. The Governor says it’s okay for me
to help you and -- but I need you to help me. I need you to
help me with this financial situation.” J.A. 2231 (internal
quotation marks omitted). Mrs. McDonnell asked to borrow
$50,000. Williams agreed to loan the money to the McDonnells.
Mrs. McDonnell also mentioned that she and her husband owed
$15,000 for their daughter’s wedding reception. Again, Williams
agreed to provide the money. Before cutting the checks,
Williams called Appellant to “make sure [he] knew about it.”
J.A. 2233. “I called him and said that, you know, ‘I met with
Maureen. I understand the financial problems and I’m willing to
help. I just wanted to make sure that you knew about this,’”
Williams recounted at trial. Id. Appellant’s response was
“Thank you.”
Id.
Three days later, on May 5 at 11 a.m., Appellant met
with Secretary Hazel and Chief of Staff Martin Kent to discuss
the strategic plan for the state’s health and human resources
office. Shortly after the meeting, Appellant directed his
assistant to forward to Hazel the article about Star that Mrs.
McDonnell had earlier brought to Appellant’s attention.
Williams returned to the Governor’s Mansion on May 23,
2011, to deliver two checks for the amounts discussed on May 2:
a $50,000 check made out to Mrs. McDonnell and a $15,000 check
9
that was not made out to anyone but was going to the wedding
caterers. After Williams delivered these checks to Mrs.
McDonnell, Appellant expressed his gratitude in a May 28 email
to Williams:
Johnnie. Thanks so much for alll your help
with my family. Your very generous gift to
Cailin was most appreciated as well as the
golf round tomorrow for the boys. Maureen
is excited about the trip to fla to learn
more about the products . . . . Have a
restful weekend with your family. Thanks. 5
G.S.A. 20. The next day, as mentioned in the email, Appellant,
his two sons, and his soon-to-be son-in-law spent the day at
Kinloch Golf Club in Manakin-Sabot, Virginia. During this
outing, they spent more than seven hours playing golf, eating,
and shopping. Williams, who was not present, covered the
$2,380.24 bill.
Also as mentioned in the email, Mrs. McDonnell
traveled to Florida at the start of June to attend a Star-
sponsored event at the Roskamp Institute. 6 While there, she
addressed the audience, expressing her support for Star and its
research. She also invited the audience to the launch for
Anatabloc, which would be held at the Governor’s Mansion. The
5Text messages and emails are quoted verbatim without
identifying any mistakes in the original. Alterations have been
made only when necessary for clarification.
6The Roskamp Institute is a private research institute that
studies Alzheimer’s disease.
10
same day -- June 1, 2011 -- she purchased 6,000 shares of Star
stock at $5.1799 per share, for a total of $31,079.40.
Weeks later, Williams sent Appellant a letter about
conducting Anatabloc studies in Virginia. Williams wrote, “I am
suggesting that you use the attached protocol to initiate the
‘Virginia study’ of Anatabloc at the Medical College of Virginia
and the University of Virginia School of Medicine, with an
emphasis on endocrinology, cardiology, osteoarthritis and
gastroenterology.” G.S.A. 29. Appellant forwarded the letter
and its attachments to Secretary Hazel for review.
Appellant’s political action committee -- Opportunity
Virginia (the “PAC”) -- hosted and funded a retreat at the Omni
Homestead Resort in Hot Springs, Virginia. The retreat began on
June 23, 2011, and was attended by the top donors to Opportunity
Virginia. Williams, “a $100,000 in-kind contributor to the
campaign and the PAC,” was invited, and he flew Appellant’s
children to the resort for the retreat. J.A. 6117. Appellant
and Williams played golf together during the retreat. A few
days later, Williams sent golf bags with brand new clubs and
golf shoes to Appellant and one of his sons.
From July 28 to July 31, Appellant and his family
vacationed at Williams’s multi-million-dollar home at Smith
Mountain Lake in Virginia. Williams allowed the McDonnells to
stay there free of charge. He also paid $2,268 for the
11
McDonnells to rent a boat. And Williams provided transportation
for the family: Appellant’s children used Williams’s Range Rover
for the trip to the home, and he paid more than $600 to have his
Ferrari delivered to the home for Appellant to use.
Appellant drove the Ferrari back to Richmond at the
end of the vacation on July 31. During the three-hour drive,
Mrs. McDonnell snapped several pictures of Appellant driving
with the Ferrari’s top down. Mrs. McDonnell emailed one of the
photographs to Williams at 7:47 p.m. At 11:29 p.m., after
returning from the Smith Mountain Lake vacation, Appellant
directed Secretary Hazel to have his deputy attend a meeting
about Anatabloc with Mrs. McDonnell at the Governor’s Mansion
the next day.
Hazel sent a staffer, Molly Huffstetler, to the August
1 meeting, which Williams also attended. During the meeting,
Williams discussed clinical trials at the University of Virginia
(“UVA”) and Virginia Commonwealth University (“VCU”), home of
the Medical College of Virginia (“MCV”). Then Williams and Mrs.
McDonnell met with Dr. John Clore from VCU, who Williams said
was “important, and he could cause studies to happen at VCU’s
medical school.” J.A. 2273. Williams -- with Mrs. McDonnell at
his side -- told Dr. Clore that clinical testing of Anatabloc in
Virginia was important to Appellant. After the meeting ended,
Mrs. McDonnell noticed the Rolex watch adorning Williams’s
12
wrist. She mentioned that she wanted to get a Rolex for
Appellant. When Williams asked if she wanted him to purchase
one for Appellant, she responded affirmatively.
The next day -- August 2, 2011 -- Mrs. McDonnell
purchased another 522 shares of Star stock at $3.82 per share,
for a total of $1,994.04.
Appellant and one of his sons returned to Kinloch Golf
Club on August 13, 2011. The bill for this golf outing, which
Williams again paid, was $1,309.17. The next day, Williams
purchased a Rolex from Malibu Jewelers in Malibu, California.
The Rolex cost between $6,000 and $7,000 and featured a custom
engraving: “Robert F. McDonnell, 71st Governor of Virginia.”
J.A. 2275 (internal quotation marks omitted). Mrs. McDonnell
later took several pictures of Appellant showing off his new
Rolex -- pictures that were later sent to Williams via text
message.
Over the next few weeks, Governor’s Mansion staff
planned and coordinated a luncheon to launch Anatabloc -- an
event paid for by Appellant’s PAC. Invitations bore the
Governor’s seal and read, “Governor and Mrs. Robert F. McDonnell
Request the Pleasure of your Company at a Luncheon.” G.S.A.
104. Invitees included Dr. Clore and Dr. John Lazo from UVA.
At the August 30 luncheon, each place setting featured samples
of Anatabloc, and Williams handed out checks for grant
13
applications -- each for $25,000 -- to doctors from various
medical institutions. 7
Appellant also attended the luncheon. According to
Lazo, Appellant asked attendees various questions about their
thoughts about Anatabloc:
So I think one question he asked us was, did
we think that there was some scientific
validity to the conversation and some of the
pre-clinical studies that were discussed, or
at least alluded to. He also, I think,
asked us whether or not there was any reason
to explore this further; would it help to
have additional information. And also, he
asked us about could this be something good
for the Commonwealth, particularly as it
relates to [the] economy or job creation.
J.A. 3344. According to Williams, Appellant was “[a]sking
questions like . . . ‘What are the end points here? What are
you looking for to show efficacy with the studies? How are you
going to proceed with that?’” Id. at 2283. Appellant also
thanked the attendees for their presence and “talked about his
interest in a Virginia company doing this, and his interest in
the product.”
Id. at 3927. Overall, “[Appellant] was generally
supportive. . . . [T]hat was the purpose.”
Id. at 2284.
7In total, Williams provided $200,000 for grant
applications. All of the checks were distributed to researchers
either at or about the time of the Anatabloc launch luncheon at
the Governor’s Mansion.
14
Despite the fanfare of the luncheon, Star’s President,
Paul L. Perito, began to worry that Star had lost the support of
UVA and VCU. In the fall of 2011, Perito was working with those
universities to file grant applications. During a particular
call with UVA officials, Perito felt the officials were
unprepared. According to Perito, when Williams learned about
this information, “[h]e was furious and said, ‘I can’t
understand it. [Appellant] and his wife are so supportive of
this and suddenly the administration has no interest.’” J.A.
3934.
D.
Prior to the beginning of 2012, Mrs. McDonnell sold
all of her 6,522 shares of Star stock for $15,279.45, resulting
in a loss of more than $17,000. This allowed Appellant to omit
disclosure of the stock purchases on a required financial
disclosure form known as a Statement of Economic Interest. Then
on January 20, 2012 -- four days after the Statement of Economic
Interest had been filed -- Mrs. McDonnell purchased 6,672 shares
of Star stock at $2.29 per share, for a total of $15,276.88.
In the meantime, on January 7, 2012, Appellant made
another golf visit to Kinloch Golf Club, running up a $1,368.91
bill that Williams again paid. Appellant omitted this golf
outing and the 2011 golf trips from his Statements of Economic
Interest. See J.A. 723 (noting Appellant’s “deliberate omission
15
of his golf-related gifts paid by Jonnie Williams”). Appellant
also omitted from his Statement of Economic Interest the $15,000
check for the caterers at his daughter’s wedding.
Also in January 2012, Williams discussed the Mobo
properties with Mrs. McDonnell, who wanted additional loans. As
a result, Williams agreed to loan more money. At the same time,
he mentioned to Mrs. McDonnell that the studies with UVA were
proceeding slowly. Mrs. McDonnell was “furious when [Williams]
told her that [they were] bogged down in the administration.”
J.A. 2308. Later, Mrs. McDonnell called Williams to advise him
that she had relayed this information to Appellant, who
“want[ed] the contact information of the people that [Star]
[was] dealing with at [UVA].” Id. at 2309 (internal quotation
marks omitted).
Appellant followed up on these discussions by calling
Williams on February 3, 2012, to talk about a $50,000 loan.
Initially, Appellant wanted a cash loan, but Williams mentioned
that he could loan stock to Appellant. Williams proposed “that
he could loan that stock either to [Appellant’s] wife or he
could loan it to [Mobo].” J.A. 6224. This conversation
continued to February 29, when Williams visited the Governor’s
Mansion. During this meeting, Appellant and Williams discussed
the potential terms of a stock transfer. However, Appellant and
Williams did not move forward with this idea because Williams
16
discovered he would have to report a stock transfer to the
Securities and Exchange Commission. At trial, Williams
testified that he did not want to transfer Star stock because he
“didn’t want anyone to know that I was helping the Governor
financially with his problems while he was helping our company.”
Id. at 2333-34. When asked what he expected in return from
Appellant, Williams testified, “I expected what had already
happened, that he would continue to help me move this product
forward in Virginia” by “assisting with the universities, with
the testing, or help with government employees, or publicly
supporting the product.”
Id. at 2355. In the end, Williams
agreed to make a $50,000 loan, writing a check in this amount to
the order of Mobo on March 6.
Also on February 3, one of Williams’s employees
responded to Mrs. McDonnell’s request for a list of doctors
Williams wished to invite to an upcoming healthcare industry
leaders reception at the Governor’s Mansion. The employee
emailed the list of doctors to Mrs. McDonnell. Four days later
-- on February 7 -- Mrs. McDonnell sent a revised list of
invitees for this event, a list that now included the doctors
identified by Williams. The next day, Sarah Scarbrough,
director of the Governor’s Mansion, sent an email to Secretary
Hazel’s assistant, Elaina Schramm. Scarbrough informed Schramm
that “[t]he First Lady and Governor were going over the list
17
last night for the healthcare industry event. The Governor
wants to make sure [head officers at UVA and VCU, along with
those of other institutions,] are included in the list.” G.S.A.
146.
Mrs. McDonnell received an email, as previously
requested by Appellant, containing the names of the UVA
officials with whom Star had been working. She forwarded this
list to Appellant and his chief counsel, Jacob Jasen Eige, on
February 9. The next day, while riding with Appellant, Mrs.
McDonnell followed up with Eige:
Pls call Jonnie today [and] get him to fill
u in on where this is at. Gov wants to know
why nothing has developed w studies after
Jonnie gave $200,000. I’m just trying to
talk w Jonnie. Gov wants to get this going
w VCU MCV. Pls let us know what u find out
after we return . . . .
G.S.A. 154. 8
Less than a week later -- on February 16, 2012 --
Appellant emailed Williams to check on the status of
certificates and documents relating to loans Williams was
providing for Mobo. Six minutes after Appellant sent this
8
The $200,000 mentioned in Mrs. McDonnell’s email to chief
counsel Eige referred to checks that Star distributed to
researchers either at or about the time of the Anatabloc launch
luncheon at the Governor’s Mansion.
18
email, he emailed Eige: “Pls see me about anatabloc issues at
VCU and UVA. Thx.” G.S.A. 157.
The healthcare industry leaders reception was held on
February 29 -- the same day as Appellant’s private meeting about
securing a loan from Williams. Following the reception,
Appellant, Mrs. McDonnell, Williams, and two doctors went out
for a $1,400 dinner on Williams’s dime. During dinner the
diners discussed Anatabloc. Mrs. McDonnell talked about her use
of Anatabloc, and Appellant asked one of the doctors -- a Star
consultant -- “How big of a discovery is this?” J.A. 2728
(internal quotation marks omitted). At one point during the
dinner Mrs. McDonnell invited the two doctors to stay at the
Governor’s Mansion for the evening -- an offer the doctors
accepted.
On March 21, 2012, Appellant met with Virginia
Secretary of Administration Lisa Hicks-Thomas, who oversaw state
employee health plans and helped determine which drugs would be
covered by the state health plan. At one point during the
meeting, Appellant reached into his pocket, retrieving a bottle
of Anatabloc. He told Hicks-Thomas that Anatabloc was “working
well for him, and that he thought it would be good for . . .
state employees.” J.A. 4227. He then asked Hicks-Thomas to
meet with representatives from Star.
19
Almost two months later -- on May 18, 2012 --
Appellant sent Williams a text message concerning yet another
loan: “Johnnie. Per voicemail would like to see if you could
extend another 20k loan for this year. Call if possible and
I’ll ask mike to send instructions. Thx bob.” G.S.A. 166.
Twelve minutes later, Williams responded, “Done, tell me who to
make it out to and address. Will FedEx. Jonnie.” Id. at 168.
Later the same month -- from May 18 to May 26 --
Appellant and his family vacationed at Kiawah Island in South
Carolina. According to Appellant, the $23,000 vacation was a
gift from William H. Goodwin Jr., whom Appellant characterized
as a personal friend. Appellant did not report this gift on his
2012 Statement of Economic Interest. He said he did not need to
report it because it fell under the “personal friend” exception
to the reporting requirements.
Between April and July 2012, Appellant emailed and
texted Williams about Star stock on four occasions, each
coinciding with a rise in the stock price. In response to a
text sent on July 3, Williams said, “Johns Hopkins human
clinical trials report on aug 8. If you need cash let me know.
Let’s go golfing and sailing Chatham Bars inn Chatham mass labor
day weekend if you can. Business about to break out strong.
Jonnie.” G.S.A. 170.
20
Appellant and his wife took Williams up on his Labor
Day weekend vacation offer. Williams spent more than $7,300 on
this vacation for the McDonnells. Williams paid the McDonnells’
share of a $5,823.79 bill for a private clambake. Also joining
in on the weekend excursion was one of the doctors who attended
the February healthcare leaders reception, whom Williams invited
in an attempt “to try to help get the Governor more involved.”
J.A. 2371.
Appellant said he learned in December 2012 that Mrs.
McDonnell had repurchased Star stock in January 2012 -- despite
having sold her entire holding of Star stock the previous year.
Appellant testified that he “was pretty upset with her.” J.A.
6270. This revelation led to a tense conversation about
reporting requirements:
[I]t was her money that she had used for
this. But I told her, you know, “Listen.
If you have this stock, you know, this is”
-- “again, triggers a reporting requirement
for me. I can do it, but I need” -- “I just
don’t” -- “I really don’t appreciate you
doing things that really” -- “that affect me
without” -- “without me knowing about it.”
Id. at 6271. That Christmas, Mrs. McDonnell transferred her
Star stock to her children as a gift. This again allowed
Appellant to file a Statement of Economic Interest that did not
report ownership of the stock. That same month -- December 2012
21
-- Williams gave Appellant’s daughter Jeanine a $10,000 wedding
gift.
E.
Eventually, all of these events came to light. And on
January 21, 2014, a grand jury indicted Appellant and Mrs.
McDonnell in a fourteen-count indictment. Appellant and Mrs.
McDonnell were charged with one count of conspiracy to commit
honest-services wire fraud, in violation of 18 U.S.C. § 1349;
three counts of honest-services wire fraud, in violation of 18
U.S.C. § 1343; one count of conspiracy to obtain property under
color of official right, in violation of 18 U.S.C. § 1951; six
counts of obtaining property under color of official right, in
violation of 18 U.S.C. § 1951; two counts of making a false
statement, in violation of 18 U.S.C. § 1014; and one count of
obstruction of official proceedings, in violation of 18 U.S.C.
§ 1512(c)(2).
Ultimately, the jury verdict of September 4, 2014,
found Appellant not guilty of the false statements counts but
guilty of all eleven counts of corruption. 9
9 The corruption counts include one count of conspiracy to
commit honest-services wire fraud pursuant to 18 U.S.C. § 1349;
three counts of honest-services wire fraud pursuant to 18 U.S.C.
§ 1343; one count of conspiracy to obtain property under color
of official right pursuant to 18 U.S.C. § 1951; and six counts
of obtaining property under color of official right pursuant to
(Continued)
22
At sentencing the Government requested a sentence of
78 months -- or six and a half years -- of imprisonment, which
was at the low end of the applicable Sentencing Guidelines
range. However, the district court departed downward and
sentenced Appellant to two years of imprisonment, followed by
two years of supervised release. Appellant now challenges his
convictions, asserting a litany of errors.
II.
A.
Motion for Severance
To begin, Appellant argues that the district court
erred when it denied both his motion for severance and his
request for ex parte consideration of this motion. We review
these rulings for an abuse of discretion. See United States v.
Lighty, 616 F.3d 321, 348 (4th Cir. 2010) (severance); RZS
Holdings AVV v. PDVSA Petroleo S.A.,
506 F.3d 350, 356 (4th Cir.
2007) (ex parte proceeding).
1.
Appellant contends that he was entitled to a trial
separate from the trial of Mrs. McDonnell. He argues that a
joint trial precluded him from calling Mrs. McDonnell as a
18 U.S.C. § 1951. Only Mrs. McDonnell was charged with
obstruction of official proceedings.
23
witness and thus introducing exculpatory testimony. The
district court denied Appellant’s motion for severance.
Appellant claims this decision was an abuse of the court’s
discretion.
In general, “defendants indicted together should be
tried together.” Lighty, 616 F.3d at 348. This is especially
true when, as in this case, the defendants are charged with
conspiracy. See United States v. Parodi,
703 F.2d 768, 779 (4th
Cir. 1983). So a defendant seeking severance based on the need
for a co-defendant’s testimony must make an initial showing of
“(1) a bona fide need for the testimony of his co-defendant, (2)
the likelihood that the co-defendant would testify at a second
trial and waive his Fifth Amendment privilege, (3) the substance
of his co-defendant’s testimony, and (4) the exculpatory nature
and effect of such testimony.”
Id. After the initial showing
is made, a district court should
(1) examine the significance of the
testimony in relation to the defendant’s
theory of defense; (2) assess the extent of
prejudice caused by the absence of the
testimony; (3) pay close attention to
judicial administration and economy; (4)
give weight to the timeliness of the
motion[;] and (5) consider the likelihood
that the co-defendant’s testimony could be
impeached.
Id.
24
Appellant failed to satisfy even the initial showing
requirements of United States v. Parodi. The district court
denied Appellant’s motion for severance because Appellant
offered only vague and conclusory statements regarding the
substance of Mrs. McDonnell’s testimony. As we expressed in
Parodi, vague and conclusory statements regarding potential
testimony are not enough to establish the substance of a co-
defendant’s testimony.
See 703 F.2d at 780.
Appellant’s motion to sever paints a picture of Mrs.
McDonnell’s potential testimony in broad strokes without filling
in any details:
First, her testimony would disprove the
Government’s primary claim that the
McDonnells acted in concert through a
criminal conspiracy to corruptly accept
gifts and loans in exchange for Mr.
McDonnell using his office to benefit
Williams and his company. Second, her
testimony would refute the Government’s
allegation that Mr. McDonnell agreed or
promised to use his office to improperly
“promote” Star’s products or to “obtain
research studies for Star Scientific’s
products.” Third, Mrs. McDonnell would
refute the Government’s allegation that she
solicited certain gifts and loans identified
in the Indictment. Finally, Mrs. McDonnell
would refute the Government’s allegation
that the McDonnells “took steps . . . to
conceal” their supposed scheme.
J.A. 296 (alternation in original) (citations omitted).
Presented with only these unadorned statements regarding the
substance of Mrs. McDonnell’s potential testimony, the district
25
court appropriately exercised its discretion when it denied the
motion to sever.
2.
Appellant claimed he could provide a more detailed
account of the substance of Mrs. McDonnell’s potential testimony
-- an account he offered to share with the district court on the
condition that the district court review the evidence ex parte.
The district court denied this invitation, finding an ex parte
proceeding would be inappropriate.
Ex parte proceedings and communications are disfavored
because they are “fundamentally at variance with our conceptions
of due process.” Doe v. Hampton, 566 F.2d 265, 276 (D.C. Cir.
1977), quoted in Thompson v. Greene,
427 F.3d 263, 269 n.7 (4th
Cir. 2005). However, such proceedings and communications may be
permissible in limited circumstances. “[O]ur analysis should
focus, first, on the parties’ opportunity to participate in the
court’s decision and, second, on whether the ex parte
proceedings were unfairly prejudicial.” RZS Holdings
AVV, 506
F.3d at 357.
Ex parte proceedings were not justified in this case.
Appellant sought to withhold from the Government all of the
information necessary to establish the necessity of severance.
This proposal would have barred the Government from challenging
whether Appellant actually satisfied the initial showing
26
required by Parodi. If the district court proceeded as
Appellant requested, it would have been the only entity in a
position to challenge Appellant’s contentions. The district
court was reluctant to assume the role of an advocate when
evaluating “a motion to sever[, which] requires a fact-
intensive, multi-factored analysis for which there is a
heightened need for well-informed advocacy.” J.A. 351. 10 It
10In United States v. Napue, the Seventh Circuit elaborated
on the problems presented by ex parte communications between a
court and the Government:
Ex parte communications between the
government and the court deprive the
defendant of notice of the precise content
of the communications and an opportunity to
respond. These communications thereby can
create both the appearance of impropriety
and the possibility of actual misconduct.
Even where the government acts in good faith
and diligently attempts to present
information fairly during an ex parte
proceeding, the government’s information is
likely to be less reliable and the court’s
ultimate findings less accurate than if the
defendant had been permitted to participate.
However impartial a prosecutor may mean to
be, he is an advocate, accustomed to stating
only one side of the case. An ex parte
proceeding places a substantial burden upon
the trial judge to perform what is naturally
and properly the function of an advocate.
834 F.2d 1311, 1318–19 (7th Cir. 1987) (emphasis omitted)
(citations omitted) (internal quotation marks omitted). The
reversal of roles in this case does not change the equation.
See Alderman v. United States,
394 U.S. 165, 184 (1969) (“As the
need for adversary inquiry is increased by the complexity of the
issues presented for adjudication, and by the consequent
(Continued)
27
properly exercised its discretion by denying Appellant’s
request.
Appellant also maintains that the district court erred
by failing to defer its ruling on the motion to sever until 14
days prior to trial. The district court was not obligated to
consider this request because Appellant waited until his reply
to argue this issue. Cf. U.S. S.E.C. v. Pirate Investor LLC,
580 F.3d 233, 255 n.23 (4th Cir. 2009) (“Ordinarily we do not
consider arguments raised for the first time in a reply
brief . . . .”); Mike’s Train House, Inc. v. Broadway Ltd.
Imports, LLC,
708 F. Supp. 2d 527, 535 (D. Md. 2010) (applying
this principle to reply memoranda). We are satisfied,
therefore, that the district court did not abuse its discretion
by denying this request outright.
Appellant simply failed to provide adequate
justification for his claim that a severance was warranted. He
was not entitled to an ex parte examination of his evidence; he
was not entitled to deferral of the district court’s ruling.
Accordingly, we affirm the denial of Appellant’s motion to
sever.
inadequacy of ex parte procedures as a means for their accurate
resolution, the displacement of well-informed advocacy
necessarily becomes less justifiable.” (emphasis omitted)).
28
B.
Voir Dire
Appellant next argues that the district court failed
to adequately question prospective jurors on the subject of
pretrial publicity. He complains that, during the voir dire
proceedings, the court declined his request for individual
questioning on this topic. Instead, the court polled the
members of the venire as a group, asking whether any of them
believed themselves to be incapable of “put[ting] aside whatever
it is that [they had] heard.” J.A. 1692. The court did call
eight prospective jurors to the bench for one-on-one
questioning, but only after the defense singled them out on the
basis of their responses to a jury selection questionnaire.
Appellant argues that such “perfunctory” questioning violated
his Sixth Amendment right to an impartial jury. Appellant’s Br.
65. Because “[t]he conduct of voir dire necessarily is
committed to the sound discretion of the trial court,” United
States v. Lancaster, 96 F.3d 734, 738 (4th Cir. 1996) (en banc),
we also review this contention for abuse of discretion, see
United States v. Caro,
597 F.3d 608, 613 (4th Cir. 2010).
Appellant’s argument begins inauspiciously, with an
assertion that the Supreme Court’s decision in Skilling v.
United States, 130 S. Ct. 2896 (2010), establishes minimum
requirements for voir dire in “publicity-saturated” cases like
29
this one. Appellant’s Br. 22. In Skilling, he claims, the
Court approved the voir dire procedure “only because” the trial
court asked prospective jurors to indicate whether they had
formed an opinion about the defendant’s guilt or innocence and
later examined them individually about pretrial publicity. Id.
Appellant then reasons that, because the trial court in this
case took neither of those steps, it necessarily “failed to
‘provide a reasonable assurance that prejudice would be
discovered if present.’”
Id. (quoting Lancaster, 96 F.3d at
740).
Skilling, however, does not purport to hand down
commandments for the proper conduct of voir dire proceedings.
See 130 S. Ct. at 2918 (explaining that the legal issue under
review was, narrowly, “the adequacy of jury selection in
Skilling’s case” (emphasis supplied)). On the contrary, the
Court in Skilling recommitted itself to the principle that jury
selection is unsusceptible to any “hard-and-fast formula”; as
always, it remains “particularly within the province of the
trial judge.”
Id. at 2917 (internal quotation marks omitted);
see also United States v. Wood,
299 U.S. 123, 145-46 (1936)
(stating that procedures for detecting and rooting out juror
bias cannot be “chained to any ancient and artificial formula”).
Trial judges, as we have repeatedly recognized, retain broad
discretion over the conduct of voir dire, see, e.g., United
30
States v. Jeffery, 631 F.3d 669, 673 (4th Cir. 2011), both as a
general matter and in the area of pretrial publicity,
specifically, see, e.g., United States v. Bailey,
112 F.3d 758,
770 (4th Cir. 1997); United States v. Bakker,
925 F.2d 728, 733-
34 (4th Cir. 1991). The Supreme Court has itself emphasized the
“wide discretion” that trial courts enjoy in questioning
prospective jurors about pretrial publicity:
Particularly with respect to pretrial
publicity, we think this primary reliance on
the judgment of the trial court makes good
sense. The judge of that court sits in the
locale where the publicity is said to have
had its effect and brings to his evaluation
of any such claim his own perception of the
depth and extent of news stories that might
influence a juror. The trial court, of
course, does not impute his own perceptions
to the jurors who are being examined, but
these perceptions should be of assistance to
it in deciding how detailed an inquiry to
make of the members of the jury venire.
Mu’Min v. Virginia, 500 U.S. 415, 427 (1991).
In his opening brief, Appellant accuses the district
court of “limit[ing] voir dire on this issue to asking the
prospective jurors en masse to sit down if they felt they could
be fair.” Appellant’s Br. 65. The court, though, did a good
deal more than that.
Jury selection in this case commenced with a court-
approved jury questionnaire spanning 99 questions, four of which
pressed prospective jurors for information about their exposure
31
to pretrial publicity. 11 The questionnaire -- by and large, a
condensed version of a slightly longer proposed questionnaire
that the parties submitted jointly -- asked respondents to state
whether they had “seen, heard or read anything” about the case;
“[h]ow closely” they had followed news about the case; and from
which types of media they had heard about it. J.A. 592-93. It
then asked whether each respondent had “expressed an opinion
about this case or about those involved to anyone,” and if so,
to elaborate on both “the circumstances” and the opinion
expressed. Id. at 593.
Appellant makes much of the fact that the jury
questionnaire merely asked whether prospective jurors had
“expressed” an opinion about the case, rather than whether they
had formed an opinion about it. Appellant, however, bears much
of the responsibility for the wording and scope of questions on
that document. And while the jointly proposed jury
questionnaire from which the final questionnaire was culled did,
indeed, ask whether prospective jurors had “formed” an opinion
about the case, the wording of this proposed question was
suspect. It asked: “Based on what you have read, heard, seen,
11
Another section of the questionnaire asked prospective
jurors to discuss their news consumption more generally.
Respondents were instructed to list, among other things, the
print and online news sources they read most often and any
websites they visit regularly.
32
and/or overheard in conversations, please tell us what opinions,
if any, you have formed about the guilt or innocence of Robert
F. McDonnell.” J.A. 527. So worded, this question invites
respondents to deliberate on the defendant’s guilt or innocence
and to stake out a position before even a single juror has been
seated. The court was justified in rejecting it. 12
Later, the court did exercise its discretion to
question the prospective jurors as a group, instead of
individually, on the subject of pretrial publicity. See Bakker,
925 F.2d at 734 (“[I]t is well established that a trial judge
may question prospective jurors collectively rather than
individually.”). During this portion of the in-court voir dire,
the court asked the members of the venire, collectively, to
stand up if they had read, heard, or seen any media reports
about the case. The court then asked the prospective jurors to
12Indeed, the court’s decision not to pose Appellant’s
suggested question finds support in the Supreme Court’s guidance
on matters of pretrial publicity. See Mu’Min, 500 U.S. at 430
(explaining that the question for voir dire is “whether the
jurors . . . had such fixed opinions that they could not judge
impartially the guilt of the defendant” (alteration in original)
(emphasis supplied) (internal quotation marks omitted)); Irvin
v. Dowd,
366 U.S. 717, 723 (1961) (“To hold that the mere
existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut
the presumption of a prospective juror’s impartiality would be
to establish an impossible standard. It is sufficient if the
juror can lay aside his impression or opinion and render a
verdict based on the evidence presented in court.”).
33
sit down if, despite this, they believed they were “able to put
aside whatever it is that [they] heard, listen to the evidence
in this case and be fair to both sides.” J.A. 1691-92. Even
still, the court invited defense counsel to identify any
specific veniremen it would like to question further on this
subject. In response, Appellant’s counsel brought forward the
names of eight prospective jurors, and the court proceeded to
summon each of those prospective jurors to the bench for
individual questioning. The court struck one of these
individuals, without objection, based on her responses to its
questions. When this process was complete, the court asked
Appellant’s counsel whether there was “[a]nybody else” he wished
to question. J.A. 1706. “Not on publicity,” counsel said. Id.
Appellant, relying on our decision in United States v.
Hankish,
502 F.2d 71 (4th Cir. 1974), argues that the
prospective jurors’ acknowledgment that they had been exposed to
pretrial publicity obligated the trial court to question every
single one of them -- not merely one at a time, but outside of
the others’ presence. See Appellant’s Br. 65. Hankish,
however, is inapplicable. The error in that case was a district
court’s refusal to poll jurors, after they had already been
seated, to discern whether any of them had read a particular,
“highly prejudicial” article that ran in the local newspaper on
the second day of the
trial. 502 F.2d at 76. We did not hold
34
then, and have not held since, that individual questioning, out
of earshot of the rest of the venire, is required to alleviate
generalized concerns about the pernicious effects of pretrial
publicity. On the contrary, we have held that merely asking for
a show of hands was not an abuse of discretion. See Bailey, 112
F.3d at 769-70 (finding no abuse of discretion where a court
asked prospective jurors to raise their hands if they had heard
or read about the case and, separately, if “anything they had
heard would predispose them to favor one side or the other”).
We are satisfied that the trial court’s questioning in
this case was adequate to “provide a reasonable assurance that
prejudice would be discovered if present.” Lancaster, 96 F.3d
at 740 (internal quotation marks omitted); see also United
States v. Hsu,
364 F.3d 192, 203-04 (4th Cir. 2004). And
Appellant does not contend that any actual juror bias has been
discovered. We conclude, therefore, that the court did not
abuse its discretion.
C.
Evidentiary Rulings
Appellant asserts the district court made multiple
erroneous evidentiary rulings. In general, we review
evidentiary rulings for an abuse of discretion, affording
substantial deference to the district court. See United States
v. Medford, 661 F.3d 746, 751 (4th Cir. 2011). “A district
35
court abuses its discretion if its conclusion is guided by
erroneous legal principles or rests upon a clearly erroneous
factual finding.” Westberry v. Gislaved Gummi AB, 178 F.3d 257,
261 (4th Cir. 1999) (citations omitted). Reversal is
appropriate if we have “a definite and firm conviction that the
court below committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant factors.”
Id. (internal quotation marks omitted).
1.
Exclusion of Expert Testimony
Appellant objects to the exclusion of his proposed
expert testimony about Williams’s cooperation agreement with the
Government as well as expert testimony about the Statements of
Economic Interest. We reject these claims, as the trial court’s
decisions to exclude this evidence were not abuses of
discretion.
a.
First, Appellant argues that he should have been
permitted to present expert testimony about Williams’s
cooperation agreement with the Government, which provided
Williams with transactional immunity. In a letter dated May 30,
2014, the Government outlined the immunized conduct:
(1) conduct involving his agreement to
provide, and his provision of, things of
value to former Virginia Governor Robert F.
36
McDonnell, former First Lady of Virginia
Maureen P. McDonnell, and their family
members; (2) conduct related to loans
Williams received from 2009 to 2012 in
exchange for his pledge of Star Scientific
stock; and (3) conduct related to Williams’
gifts of Star Scientific stock to certain
trusts from 2009 to 2012.
J.A. 7918. Appellant offered the expert testimony of Peter
White -- a partner at Schulte Roth & Zabel LLP and former
Assistant United States Attorney -- to “explain[] transactional
immunity, its value, and its uniqueness” and to “help[] the jury
understand Williams’s deal so it could assess his credibility.”
Appellant’s Br. 78.
Expert testimony cannot be used for the sole purpose
of undermining a witness’s credibility. See United States v.
Allen, 716 F.3d 98, 105–06 (4th Cir. 2013). Here, the defense
wished to present White’s testimony in order to emphasize the
rarity of Williams’s agreement and to imply, as a result, that
Williams had more reason to provide false or greatly exaggerated
testimony. In other words, the sole purpose of White’s
testimony was to undermine Williams’s credibility. This is a
matter best left to cross examination. Accordingly, we cannot
conclude that the district court’s decision to exclude this
evidence was an abuse of discretion. See
Allen, 716 F.3d at 106
(“A juror can connect the dots and understand the implications
that a plea agreement might have on a codefendant’s testimony --
37
it is certainly within the realm of common sense that certain
witnesses would have an incentive to incriminate the defendant
in exchange for a lower sentence.” (internal quotation marks
omitted)). 13
b.
Second, Appellant argues that he should have been
permitted to present expert testimony about the Statements of
Economic Interest. Appellant offered the expert testimony of
Norman A. Thomas -- a private attorney who formerly worked in
13Appellant also contests the exclusion of his proposed lay
witness testimony about the rarity of Williams’s agreement. At
trial, the court sustained the Government’s objection after
defense counsel asked Williams whether he understood “how
unusual it is . . . to get transactional immunity” and again
after defense counsel asked an FBI special agent whether he had
“ever seen a cooperating witness get the kind of deal that Mr.
Williams got.” J.A. 2778, 5064. Appellant claims this
testimony would have helped the jury assess Williams’s
credibility. In relevant part, Rule 701 of the Federal Rules of
Evidence requires that opinion testimony from a lay witness must
be “helpful to clearly understanding the witness’s testimony.”
Fed. R. Evid. 701(b); see also United States v. Hassan, 742 F.3d
104, 136 (4th Cir. 2014) (“Lay opinion testimony is particularly
useful when . . . the terms and concepts being discussed . . .
are likely to be unfamiliar to the jury.”). Juries are familiar
with the general import and effect of immunity agreements. Cf.
Allen, 716 F.3d at 106 (discussing jurors’ ability to understand
the implications of a plea agreement). Here, the jury was
informed of the contents of Williams’s agreement, and Williams
testified about the agreement and his understanding of the
immunities from prosecution it afforded him. The jury did not
need additional testimony regarding what types of agreements are
more common than others to assess Williams’s credibility. In
other words, the district court reasonably concluded that the
testimony would not have been helpful.
38
the Office of the Attorney General of Virginia and served as a
judge -- to explain the vagueness and complexity of the
Statements of Economic Interest. According to Appellant, Thomas
also would have explained that Appellant’s Statements of
Economic Interest evidenced a reasonable understanding of the
disclosure requirements.
Expert testimony must “help the trier of fact to
understand the evidence or to determine a fact in issue.” Fed.
R. Evid. 702(a). “The helpfulness requirement of Rule 702 thus
prohibits the use of expert testimony related to matters which
are obviously . . . within the common knowledge of jurors.”
United States v. Lespier, 725 F.3d 437, 449 (4th Cir. 2013)
(alteration in original) (internal quotations marks omitted).
The district court excluded the testimony of Thomas
because it would not be helpful to the jury. As the court
observed, the jurors were “capable of reading and assessing the
complexity of the [Statements] for themselves.” J.A. 719.
Generally speaking, one does not need any special skills or
expertise to recognize that something is complex. Accordingly,
this matter was plainly within the common knowledge of the
jurors. Similarly, the jurors did not need expert assistance to
assess the reasonableness of Appellant’s opinions about what he
did and did not have to disclose. The district court reasonably
concluded that Thomas’s testimony would not have been helpful.
39
As a result, we cannot conclude that the district court’s
decision to exclude this evidence was an abuse of discretion.
2.
Admission of Statements of Economic Interest
Appellant objects to the admission of the Statements
of Economic Interest filed by Appellant during his time in
office. Appellant moved in limine to exclude evidence relating
to the Statements of Economic Interest, arguing the Statements
of Economic Interest would have little to no probative value and
their admission would confuse the issues and mislead the jury.
The Government, on the other hand, characterized the
Statements of Economic Interest and related evidence as
concealment evidence, which would reveal Appellant’s “corrupt
intent and consciousness of guilt.” J.A. 723. In support of
this proposition, the Government offered four examples of how
the Statements of Economic Interest amounted to concealment
evidence:
[F]irst, because of [Appellant’s] deliberate
omission of his golf-related gifts paid by
Jonnie Williams; second, because of
[Appellant’s] deliberate omission of the
$15,000 check from Mr. Williams to pay the
remainder of the catering bill the
McDonnells owed for their daughter’s
wedding; third, as the reason why Mrs.
McDonnell sold and repurchased all Star
stock held in her account on dates flanking
the due date for [Appellant’s] 2011
[Statement of Economic Interest], and why
the next year, she similarly unloaded Star
40
stock to [Appellant’s] children on December
26, 2012, such that less than $10,000 worth
of Star stock remained in her account at
year-end; and fourth, as the reason why
[Appellant] had Mr. Williams direct $70,000
in loan proceeds to [Mobo].
Id. at 723–24 (citations omitted).
Evidence is relevant if “it has any tendency to make a
fact more or less probable than it would be without the
evidence” and “the fact is of consequence in determining the
action.” Fed. R. Evid. 401(a)–(b). Relevant evidence may be
excluded “if its probative value is substantially outweighed by
a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Id. 403.
The district court admitted the Statements of Economic
Interest because they were relevant “to concealment and may be
probative of intent to defraud” and because “admission . . .
will not unfairly prejudice [Appellant] because there is no
suggestion, and there will be none at trial, that [Appellant]
violated Virginia’s ethics laws or reporting requirements.”
J.A. 760. Indeed, an attempt to conceal actions may indicate an
individual has a guilty conscience or is aware of the
unlawfulness of the actions. See United States v. Zayyad,
741
F.3d 452, 463 (4th Cir. 2014). Because the Statements of
Economic Interest did not include various gifts, stock
41
transactions, and loans from Williams to Appellant -- omissions
Appellant sought to explain during trial 14 -- the structuring of
the loans and gifts and failures to report could be seen as
efforts to conceal Appellant’s dealings with Williams. The
district court correctly observed as much. And the district
court weighed the probative value of this evidence against any
dangers that would accompanying its admission. Accordingly, we
cannot conclude that the district court’s decision to admit this
evidence was an abuse of discretion.
3.
Admission of Other Gifts Evidence
Appellant objects to the admission of evidence that he
accepted a gift of the Kiawah vacation from Goodwin and that he
14 Appellant testified that he should have reported -- but
did not report -- golf outings provided by Williams in 2011. He
did not report Williams’s $15,000 check for catering at
Appellant’s daughter’s wedding, characterizing the check as a
wedding gift to his daughter. Appellant instructed Williams to
write loan checks to Mobo, circumventing disclosure
requirements. In both 2011 and 2012, Mrs. McDonnell unloaded
shares of Star stock prior to the filing dates for the
Statements of Economic Interest so her ownership did not have to
be reported. But after the 2011 Statement of Economic Interest
was filed, Mrs. McDonnell repurchased shares of Star stock.
Appellant testified that “it was not a big deal” if he had to
report ownership of Star stock. J.A. 6276. He claimed that he
encouraged his wife to sell the stock in 2011 because it was a
risky investment. He also claimed that Mrs. McDonnell
repurchased and again transferred Star stock in 2012 because she
wanted to give the stock to their children as a Christmas
present.
42
did not disclose this gift pursuant to the “personal friend”
exception to Virginia’s reporting requirements. Appellant moved
in limine to exclude this evidence as extrinsic evidence of
unrelated alleged acts with no probative value of his intent.
The Government responded that this evidence showed Appellant’s
knowledge of the “personal friend” exception to reporting
requirements. This evidence, the Government further noted,
would be “competent evidence of absence of mistake or lack of
accident when it comes to assessing [Appellant’s] intent in
failing to disclose the gifts and loans from Mr. Williams.”
J.A. 731.
As a general rule, “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1).
However, such evidence “may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Id. 404(b)(2).
The district court admitted the evidence of the Kiawah
vacation omission because it was used to show knowledge and lack
of mistake. The omission of the gift from Goodwin, the district
court determined, “is similar to the act the Government seeks to
prove -- omission of gifts from Williams pursuant to the
43
personal friend exception.” J.A. 761. This evidence
established that Appellant knew about the “personal friend”
exception and omitted certain gifts pursuant to this exception.
Thus, Appellant’s knowledge and the absence of mistake was
“relevant to, and probative of, his alleged intent to defraud.”
Id. Rule 404 permits the admission of evidence of intent and
knowledge, and in our view, the district court could conclude
that the Goodwin evidence was admissible for these purposes.
Therefore, we cannot conclude that the district court’s decision
to admit this evidence was an abuse of discretion.
4.
Admission of Email Exchange Regarding Free Golf
Appellant objects to the admission of an email
exchange about obtaining free rounds of golf. On January 4,
2013, Emily Rabbitt -- Appellant’s travel aide and deputy
director of scheduling -- asked Adam Zubowsky for advice about
planning golf trips for Appellant. Zubowsky -- once Appellant’s
travel aide and later Appellant’s son-in-law -- responded in an
email dated January 4, 2013:
Yes basically this means find out who we
know in these cities, that owns golf courses
and will let me and my family play for free,
or at a reduced cost. Also finding out
where to stay for free / or reduced cost.
So this means . . . find out about pac
donors, and rga donors, who will host rfm.
J.A. 7921.
44
During trial, Appellant objected to the admission of
this email, asserting that this evidence was not relevant and
was extraordinarily prejudicial. In post-trial motions and on
appeal, however, Appellant has claimed the exchange was
inadmissible hearsay and inadmissible character evidence.
Because Appellant did not object at trial on these grounds, our
review is for plain error. See United States v. Bennett, 698
F.3d 194, 200 (4th Cir. 2012).
On plain error review, an appellant “bears the burden
of establishing (1) that the district court erred; (2) that the
error was plain; and (3) that the error affect[ed his]
substantial rights.” Bennett, 698 F.3d at 200 (alteration in
original) (internal quotation marks omitted). An error affects
an individual’s substantial rights if it was prejudicial, “which
means that there must be a reasonable probability that the error
affected the outcome of the trial.” United States v. Marcus,
130 S. Ct. 2159, 2164 (2010). The mere possibility that the
error affected the outcome of the trial does not establish
prejudice. See
id. “Even then, this court retain[s] discretion
to deny relief, and denial is particularly warranted where it
would not result in a miscarriage of justice.”
Bennett, 698
F.3d at 200 (alteration in original) (internal quotation marks
omitted).
45
At first, the district court refused to permit
discussion of the particular email exchange when it was
mentioned during the testimony of Rabbitt. Later in the trial,
during cross examination of Appellant, the email exchange was
admitted over Appellant’s relevancy objection. The discussion
of the exchange focused on whether Appellant received
information about golf courses where he could play for free or
at a reduced cost. Upon review of the record, it does not
appear that this exchange was mentioned again, and the parties
have not identified any other discussion of the exchange.
The use of the email exchange was quite limited,
especially in light of the voluminous evidence presented during
the course of the five weeks of trial. We cannot say there is a
reasonable probability that its admission affected the outcome
of the trial. The indictment, we note, did not seek to
prosecute Appellant for this conduct; indeed, the district court
instructed the jury that Appellant was “not on trial for any act
or conduct or offense not alleged in the indictment.” J.A.
7695. We presume the jurors followed the district court’s
instruction. See, e.g., Weeks v. Angelone, 528 U.S. 225, 234
(2000). Accordingly, the claim that evidence of the email
exchange affected the outcome of the trial is beyond the realm
of reasonable probability. The admission of this evidence was
not plainly erroneous.
46
5.
Return of Forensic Image of Williams’s iPhone
Appellant also asserts the district court erroneously
ordered him to return all copies of a forensic image of
Williams’s iPhone, which the Government had produced to
Appellant pursuant to Rule 16 of the Federal Rules of Criminal
Procedure. Appellant’s chief complaint is that the forensic
image may contain evidence to which he is entitled pursuant to
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States,
405 U.S. 150 (1972).
However, Appellant waives this claim because his
treatment of it is conclusory. Appellant merely argues: “If
[Appellant] receives a new trial, he is entitled to this
evidence, which almost certainly contains Brady and Giglio
material. Likewise, if any of that evidence proves material,
its confiscation requires a new trial.” Appellant’s Br. 85
(citations omitted). Appellant’s argument includes bare
citations to two decisions of little obvious relevance from
other courts of appeals. Furthermore, Appellant does not make
any effort to establish the elements of a Brady or Giglio
violation. See Strickler v. Greene, 527 U.S. 263, 281–82 (1999)
(“The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
47
evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.”).
Summary treatment of a claim does not sufficiently
raise the claim. See, e.g., Russell v. Absolute Collection
Servs., Inc., 763 F.3d 385, 396 n.* (4th Cir. 2014) (noting that
failure to present legal arguments and “record citations or
pertinent legal authority supporting . . . a claim” waives the
claim). Although Appellant raised this issue in an
interlocutory appeal in a related case -- an appeal we dismissed
for want of jurisdiction -- this does not preserve the issue and
is not sufficient to raise the issue now. To avoid waiver, a
party must brief the issue in an appeal over which we may
exercise jurisdiction. Thus, because Appellant fails to
sufficiently raise this issue and has, therefore, effectively
waived it, we do not further address it.
III.
With these matters resolved, we turn to the two
arguments at the core of this appeal. First and foremost,
Appellant asserts that the district court’s jury instructions
misstated fundamental principles of federal bribery law.
Second, he asserts that the Government’s evidence was
insufficient to support his convictions pursuant to the honest-
services wire fraud statute and the Hobbs Act. We address each
of these contentions in turn.
48
A.
Jury Instructions
Appellant’s claim with respect to the jury
instructions is that the court defined bribery far too
expansively. “We review de novo the claim that a jury
instruction failed to correctly state the applicable law.”
United States v. Jefferson, 674 F.3d 332, 351 (4th Cir. 2012).
“[W]e do not view a single instruction in isolation, but instead
consider whether taken as a whole and in the context of the
entire charge, the instructions accurately and fairly state the
controlling law.” United States v. Woods,
710 F.3d 195, 207
(4th Cir. 2013) (internal quotation marks omitted). Even if,
upon review, we find that the court misinstructed the jury on an
element of an offense, we may disregard the error as harmless.
See United States v. Cloud,
680 F.3d 396, 408 n.5 (4th Cir.
2012); United States v. Ramos-Cruz,
667 F.3d 487, 496 (4th Cir.
2012). “We find an error in instructing the jury harmless if it
is ‘clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error.’” 15 Ramos-
15 Prior to closing arguments in this case, the trial court
conducted a lengthy charge conference, during which Appellant’s
counsel vigorously challenged many of the Government’s proposed
instructions, including instructions that the court ultimately
gave. The court did not invite the parties to object to the
instructions after the court gave them to the jury -- nor did
either party request to do so. We remind the district courts
(Continued)
49
Cruz, 667 F.3d at 496 (quoting Neder v. United States,
527 U.S.
1, 18 (1999)).
1.
We begin our analysis with an examination of the
statutes of conviction. The first of these is the honest-
services wire fraud statute, 18 U.S.C. §§ 1343, 1346. 16 This
statute requires the Government to prove that the defendant
sought to “carry out a ‘scheme or artifice to defraud’ another
of ‘the intangible right of honest services.’” United States v.
Terry, 707 F.3d 607, 611 (6th Cir. 2013) (citations omitted)
(quoting 18 U.S.C. §§ 1341, 1346). The Supreme Court has
and counsel that the proper time for cementing objections to
instructions is after they are given but “before the jury
retires to deliberate.” Fed. R. Crim. P. 30(d); see United
States v. Taglianetti,
456 F.2d 1055, 1056-57 (1st Cir. 1972)
(rejecting the “improper practice” of taking objections to the
jury charge “in chambers before delivery, rather than
afterwards”).
16 The wire fraud statute provides, in pertinent part:
Whoever, having devised or intending to
devise any scheme or artifice to
defraud, . . . transmits or causes to
be transmitted by means of wire . . .
communication in interstate or foreign
commerce, any writings, signs, signals,
pictures, or sounds for the purpose of
executing such scheme or artifice, shall be
fined . . . or imprisoned . . . or both.
18 U.S.C. § 1343. “[T]he term ‘scheme or artifice to defraud’
includes a scheme or artifice to deprive another of the
intangible right of honest services.” Id. § 1346.
50
recognized that § 1346 proscribes two, and only two, types of
activities: bribery and kickback schemes. See Skilling v.
United States, 130 S. Ct. 2896, 2907 (2010). To the extent that
the statute prohibits acts of bribery, the prohibition “draws
content . . . from federal statutes proscribing -- and defining
-- similar crimes,” including the general federal bribery
statute, 18 U.S.C. § 201(b), and the statute prohibiting theft
and bribery involving federal funds, 18 U.S.C. § 666(a)(2).
Skilling, 130 S. Ct. at 2933.
Here, in their proposed instructions for honest-
services wire fraud, both parties sought to import the
definition of bribery set forth in 18 U.S.C. § 201(b)(2). This
statute provides that public officials may not “corruptly”
demand, seek, or receive anything of value “in return
for . . . being influenced in the performance of any official
act.” 18 U.S.C. § 201(b)(2). The statute defines an “official
act” as “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.” Id. § 201(a)(3). The
district court provided a near-verbatim recitation of these
provisions in its honest-services wire fraud instructions.
51
A second statute of conviction in Appellant’s case,
the Hobbs Act, prohibits acts of extortion which “in any way or
degree obstruct[], delay[], or affect[] commerce or the movement
of any article or commodity in commerce.” 18 U.S.C. § 1951(a).
Though a defendant may commit extortion through threats or
violence, it is also possible to commit extortion by obtaining
property “under color of official right.” Id. § 1951(b)(2). In
Evans v. United States, the Supreme Court explained that its
construction of § 1951 “is informed by the common-law
tradition,” under which “[e]xtortion by [a] public official was
the rough equivalent of what we would now describe as ‘taking a
bribe.’”
504 U.S. 255, 260, 268 (1992). Accordingly, we have
concluded that prosecutions for extortion under color of
official right, like prosecutions under other bribery-related
statutes, require proof of a quid pro quo. See United States v.
Hairston,
46 F.3d 361, 365 (4th Cir. 1995).
Here, the parties agreed that a charge of extortion
under color of official right has four elements. The trial
court accordingly instructed the jury that the Government must
prove beyond a reasonable doubt that the defendant (1) was a
public official; (2) “obtained a thing of value not due him or
his [office]”; (3) “did so knowing that the thing of value was
given in return for official action”; and (4) “did or attempted
52
in any way or degree to delay, obstruct, or affect interstate
commerce, or an item moving in interstate commerce.” J.A. 7681.
2.
Official Acts
Appellant first challenges the district court’s
instructions on the meaning of “official act,” or,
alternatively, “official action.” Appellant argues the court’s
definition was overbroad, to the point that it would seem to
encompass virtually any action a public official might take
while in office.
In its instructions on honest-services wire fraud, the
district court defined “official action”:
The term official action means 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 public official’s official capacity.
Official action as I just defined it
includes those actions that have been
clearly established by settled practice as
part of a public official’s position, even
if the action was not taken pursuant to
responsibilities explicitly assigned by law.
In other words, official actions may include
acts that a public official customarily
performs, even if those actions are not
described in any law, rule, or job
description. And a public official need not
have actual or final authority over the end
result sought by a bribe payor so long as
the alleged bribe payor reasonably believes
that the public official had influence,
power or authority over a means to the end
sought by the bribe payor. In addition,
53
official action can include actions taken in
furtherance of longer-term goals, and an
official action is no less official because
it is one in a series of steps to exercise
influence or achieve an end.
J.A. 7671-72. The court later explained to the jury that these
instructions “apply equally to the definition of official action
for the purposes of” the Hobbs Act counts. Id. at 7683.
In broad strokes, Appellant’s argument is that the
court’s definition of “official action” is overinclusive. By
his account, the court’s instructions would deem virtually all
of a public servant’s activities “official,” no matter how minor
or innocuous. For public figures such as a governor, who
interact with constituents, donors, and business leaders as a
matter of custom and necessity, these activities might include
such routine functions as attending a luncheon, arranging a
meeting, or posing for a photograph. Appellant argues that
activities of this nature can never constitute an official act.
See Appellant’s Br. 28.
We have recognized that the term “official act” “does
not encompass every action taken in one’s official capacity.”
Jefferson, 674 F.3d at 356. Its meaning is more limited than
that. We are satisfied, though, that the district court
adequately delineated those limits when it informed the jury
that the term “official act” covers only “decision[s] or
action[s] on any question, matter, cause, suit, proceeding, or
54
controversy, which may at any time be pending, or which may by
law be brought before any public official, in such public
official’s official capacity.” J.A. 7671 (paraphrasing 18
U.S.C. § 201(a)(3)).
a.
The Supreme Court has twice expounded on the meaning
of “official act.” It first did so a little more than a century
ago, in United States v. Birdsall, 233 U.S. 223 (1914). There,
two federal officers responsible for suppressing liquor traffic
in Indian communities challenged their indictments for accepting
bribes in violation of section 117 of the Criminal Code, the
predecessor statute to 18 U.S.C. § 201(b). 17 See Birdsall, 233
17 Section 117 provided:
Whoever, being an officer of the United
States, or a person acting for or on behalf
of the United States, in any official
capacity, under or by virtue of the
authority of any department or office of the
Government thereof[,] . . . shall ask,
accept, or receive any money, . . . with
intent to have his decision or action on any
question, matter, cause, or proceeding which
may at any time be pending, or which may by
law be brought before him in his official
capacity, or in his place of trust or
profit, influenced thereby, shall be
[penalized by fine, imprisonment, and
disqualification from office].
Act of March 4, 1909, ch. 321, § 117, 35 Stat. 1088, 1109-10.
We have observed that “there is simply no distinction in
substance between an official act as defined by Birdsall” and an
(Continued)
55
U.S. at 227. The indictments alleged that attorney Birdsall
bribed the officers to advise the Commissioner of Indian Affairs
to recommend leniency for individuals convicted of liquor
trafficking offenses involving Indians. See
id. at 229-30. The
district court sustained the officers’ demurrers, holding that
their actions were not within the scope of the bribery statute
because “there [was] no act of Congress conferring upon the
Interior Department, or the Bureau of Indian Affairs, any duty
whatever in regard to recommending to the executive or judicial
departments of the government whether or not executive or
judicial clemency shall be extended.” United States v.
Birdsall,
206 F. 818, 821 (N.D. Iowa 1913), rev’d,
233 U.S. 223
(1914). The Supreme Court, however, reversed. In doing so, it
declared that an action may be “official” for purposes of a
bribery charge even if it is not prescribed by statute, written
rule, or regulation. See
Birdsall, 233 U.S. at 230-31. Indeed,
as the Court explained, an official act:
might also be found in an established usage
which constituted the common law of the
department and fixed the duties of those
engaged in its activities. In numerous
instances, duties not completely defined by
written rules are clearly established by
settled practice, and action taken in the
“official act” under the current bribery statute, 18 U.S.C.
§ 201(a)(3). Jefferson, 674 F.3d at 353.
56
course of their performance must be regarded
as within the provisions of the above-
mentioned statutes against bribery.
Id. at 231 (citation omitted).
Birdsall continues to stand for the proposition that
an “official act” “may include acts that a [public servant]
customarily performs, even if the act falls outside the formal
legislative process.” Jefferson, 674 F.3d at 357; see also
United States v. Morlang,
531 F.2d 183, 192 (4th Cir. 1975).
Importantly, though, Birdsall did not rule, and we have never
held, that every act an official performs as a matter of custom
is an “official act.” To constitute an “official act” under
federal bribery law, a settled practice “must yet adhere to the
definition confining an official act to a pending ‘question,
matter, cause, suit, proceeding or controversy.’”
Jefferson,
674 F.3d at 356 (quoting 18 U.S.C. § 201(a)(3)).
By way of dicta in United States v. Sun-Diamond
Growers of California, 526 U.S. 398 (1999), the Supreme Court
has clarified this point. Sun-Diamond, it must be noted, was
not a bribery case. Its focus, rather, was the federal gratuity
statute, 18 U.S.C. § 201(c), which criminalizes gifts given to a
public official “for or because of any official act.” 18 U.S.C.
§ 201(c)(1)(A). Notably, though, the definition of an “official
act” supplied in § 201(a)(3) applies to the entirety of § 201,
including the dual prohibitions on bribery and illegal
57
gratuities. See 18 U.S.C. § 201(a) (providing a definition of
“official act” “[f]or the purpose of this section”).
The Sun-Diamond Court explained that the illegal
gratuity statute requires the Government to demonstrate a link
between the gift and “some particular official act of whatever
identity.” 526 U.S. at 406 (internal quotation marks omitted).
In the course of its explanation, the Court stated that an
alternative reading would criminalize, for example, “token gifts
to the President based on his official position and not linked
to any identifiable act -- such as the replica jerseys given by
championship sports teams each year during ceremonial White
House visits”; “a high school principal’s gift of a school
baseball cap to the Secretary of Education, by reason of his
office, on the occasion of the latter’s visit to the school”; or
a “complimentary lunch” provided for the Secretary of
Agriculture “in connection with his speech to the farmers
concerning various matters of USDA policy.”
Id. at 406-07. The
Court proceeded to explain why it would not do to argue that
these three acts -- that is, receiving the sports teams,
visiting the high school, or speaking to farmers -- were
“official acts” in their own right:
The answer to this objection is that those
actions -- while they are assuredly
“official acts” in some sense -- are not
“official acts” within the meaning of the
statute, which, as we have noted, defines
58
“official act” to mean “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). Thus, when the
violation is linked to a particular
“official act,” it is possible to eliminate
the absurdities through the definition of
that term.
Id. at 407-08 (emphasis omitted).
We have previously declined to read Sun-Diamond to
exclude “all settled practices by a public official from the
bribery statute’s definition of an official act.” Jefferson,
674 F.3d at 356 (emphasis supplied). Appellant concedes the
point, acknowledging that “some settled practices can be
official acts.” Appellant’s Br. 37 (emphasis omitted). He
argues, though, that under the logic of Sun-Diamond, the kinds
of activities he is accused of -- e.g., speaking with aides and
arranging meetings -- can never constitute “official acts”
because they “implicate no official power.” 18
Id. at 31
(emphasis omitted). Appellant simply misreads Sun-Diamond.
18In further support of his argument that an “official act”
necessitates a deployment of “official powers,” Appellant calls
our attention to the First Circuit’s decision in United States
v. Urciuoli, 513 F.3d 290 (1st Cir. 2008). The appellants in
Urciuoli were hospital executives who allegedly employed a state
senator in a “sham job” in exchange for various efforts to
advance the hospital’s financial
interests. 513 F.3d at 292.
In pertinent part, the Government alleged that the senator
(Continued)
59
The Sun-Diamond Court did not rule that receptions,
public appearances, and speeches can never constitute “official
acts” within the meaning of § 201(a)(3); the Court’s point was
that job functions of a strictly ceremonial or educational
nature will rarely, if ever, fall within this definition. The
reason is not that these functions cannot relate, in some way,
lobbied municipal officials to comply with Rhode Island law
governing ambulance runs. See id. As a result of this act,
among various other actions, the executives were convicted of
honest-services mail fraud pursuant to 18 U.S.C. §§ 1341 and
1346. See
id. at 293.
There, as in this case, the chief issue on appeal was
whether the court’s instructions were overbroad. It must be
noted, though, that the instructions in that case were decidedly
different than the instructions here. Instead of borrowing the
bribery definition from § 201(a)(3), as the court here did, the
trial court in Urciuoli instructed the jury to decide whether
the object of the scheme was a deprivation of “honest services,”
defined as follows:
The honest services that an elected official
owes to citizens is not limited to the
official’s formal votes on legislation. It
includes the official’s behind-the-scenes
activities and influence in the legislation,
and it also includes other actions that the
official takes in an official capacity, not
what he does as a private individual but
what he does under the cloak of his office.
Urciuoli, 513 F.3d at 295 n.2 (internal quotation marks
omitted). The First Circuit ruled that the phrase “under the
cloak of his office” was overbroad under the circumstances
because lobbying mayors to obey state law cannot constitute a
deprivation of honest services. See
id. at 295. While
Appellant reads Urciuoli to proclaim that acts like lobbying can
never be official acts, the First Circuit made no such
pronouncement.
60
to a “question, matter, cause, suit, proceeding or controversy.”
18 U.S.C. § 201(a)(3). Frequently, they will. When, as in the
Court's example, the Secretary of Education visits a local high
school, he may proceed to discuss matters of education policy
with the student body. Surely, though, this discussion does not
have the purpose or effect of exerting some influence on those
policies. Its function, rather, is to educate an audience of
students. Under these circumstances, it cannot be said that the
Secretary’s visit is a “‘decision or action on’” the question,
matter, cause, suit, proceeding, or controversy. Sun-Diamond,
526 U.S. at 407 (emphasis supplied) (quoting 18 U.S.C.
§ 201(a)(3)).
In view of these precedents, we are satisfied that the
reach of § 201(a)(3) is broad enough to encompass the customary
and settled practices of an office, but only insofar as a
purpose or effect of those practices is to influence a
“question, matter, cause, suit, proceeding or controversy” that
may be brought before the government. 18 U.S.C. § 201(a)(3).
It is with this principle in mind that we assess Appellant’s
contentions about the jury instructions in this case. 19
19Appellant invokes a number of canons of statutory
interpretation that favor a narrow construction of “official
act.” As for his argument that the bribery laws should be void
for vagueness, the Supreme Court has already rejected a
challenge that the honest-services statute is unconstitutionally
(Continued)
61
b.
Appellant accuses the district court of giving the
jury an “unprecedented and misleading” instruction on the
“official act” element. Appellant’s Br. 51. We disagree with
these characterizations. First, the court’s instruction was not
unprecedented. To a large extent, the instruction echoed the
“official act” instruction in United States v. Jefferson. 20
Second, the instruction here was not misleading. The court
correctly stated, consistent with Birdsall, that the term
“official action” “includes those actions that have been clearly
established by settled practice as part of a public official’s
position, even if the action was not taken pursuant to
responsibilities explicitly assigned by law.” J.A. 7671-72.
vague as applied to bribery. See Skilling, 130 S. Ct. at 2928.
And because Appellant has “engage[d] in some conduct that is
clearly proscribed” by the Hobbs Act, he “cannot complain of the
vagueness of the law as applied to the conduct of others.”
Holder v. Humanitarian Law Project,
561 U.S. 1, 18-19 (2010)
(internal quotation marks omitted). Appellant’s remaining
narrowing arguments -- which invoke federalism concerns, the
rule of lenity, and dicta in Sun-Diamond -- all presuppose
inherent ambiguity in the statutory term “official act.”
However, as we have explained, the term is sufficiently definite
as to make recourse to those canons unnecessary.
20
In Jefferson, we held that the following jury instruction
was not erroneous: “An act may be official even if it was not
taken pursuant to responsibilities explicitly assigned by law.
Rather, official acts include those activities that have been
clearly established by settled practice as part of a public
official’s position.” 674 F.3d at 353 (alteration omitted).
62
The court then explained that the meaning of “official action”
is tethered to decisions or actions on a “question, matter,
cause, suit, proceeding, or controversy” that may come before
the government. See id. at 7671.
i.
Appellant takes issue with the court’s instruction
that an official action “‘can include actions taken in
furtherance of longer-term goals.’” Appellant’s Br. 56 (quoting
J.A. 7672). He argues that this instruction is too sweeping, as
“virtually anything could be in ‘furtherance’ of some goal.”
Id. For similar reasons, Appellant challenges the court’s
instruction that “‘an official action is no less official
because it is one in a series of steps to exercise influence or
achieve an end.’”
Id. (emphasis omitted) (quoting J.A. 7672).
We find no error in either of the court’s statements.
We observe, first, that the federal bribery statute,
18 U.S.C. § 201(b), from which the honest-services wire fraud
statute draws meaning, criminalizes the act of “corruptly
demand[ing], seek[ing], receiv[ing], accept[ing], or agree[ing]
to receive or accept” a thing of value in return for influence.
18 U.S.C. § 201(b)(2). The solicitation or acceptance of the
bribe completes the crime, regardless of whether the recipient
completes, or even commences, the “official act” the bribe payor
sought to influence. See Howard v. United States, 345 F.2d 126,
63
128 (1st Cir. 1965) (“[I]t has been long established that the
crime of bribery is complete upon the acceptance of a bribe
regardless of whether or not improper action is thereafter
taken.”). The same is true of a Hobbs Act extortion charge.
See Evans, 504 U.S. at 268 (recognizing that the crime of
extortion under color of official right is “completed at the
time when the public official receives a payment in return for
his agreement to perform specific official acts”); United States
v. Loftus,
992 F.2d 793, 797 (8th Cir. 1993). In either case,
when prosecuting a bribe recipient, the Government need only
prove that he or she solicited or accepted the bribe in return
for performing, or being influenced in, some particular official
act. Of importance, the consummation of an “official act” is
“not an element of the offense.”
Evans, 504 U.S. at 268.
We further observe that an “official act” may pertain
to matters outside of the bribe recipient’s control. See 18
U.S.C. § 201(a)(3) (providing that an act may be “official” so
long as the matter to be decided or acted upon “may by law be
brought before any public official” (emphasis supplied)).
Indeed, in Birdsall, the defendant-officers lacked any authority
to grant clemency; all they could provide was advice. 233 U.S.
at 229-30. Nevertheless, the Supreme Court upheld their bribery
indictments. See
id. at 236. Likewise, in Sears v. United
States, the First Circuit recognized that government inspectors
64
were performing an “official” function, for purposes of two
shoemakers’ federal bribery charges, when they accepted payoffs
to disregard inadequacies in leather shoes destined for sale to
the Army. 264 F. 257, 261-62 (1st Cir. 1920). As the court
stated:
The fact that these inspectors acted only in
a preliminary or in an advisory capacity,
and without final power to reject or accept,
does not prevent their duties from
being official duties. Final decisions
frequently, perhaps generally, rest in large
part upon the honesty and efficiency of
preliminary advice. . . . To sustain the
contention of the defendants that these
inspectors were not performing an official
function would be to rule that the thousands
of inspectors employed to advise and assist
the government under the contracts for the
hundreds of millions of war supplies might
be bribed with impunity. To state the
proposition is to reject it.
Id.
Our decision in Jefferson supports the proposition
that mere steps in furtherance of a final action or decision may
constitute an “official act.” The defendant in that case was a
former Louisiana congressman who, as co-chair of the Africa
Trade and Investment Caucus and the Congressional Caucus on
Nigeria, was “largely responsible for promoting trade” with
Africa. 674 F.3d at 357. A jury convicted Jefferson of both
bribery and honest-services wire fraud, based in part on
allegations that he asked a telecommunications company to hire
65
his family’s consulting firm in return for his efforts to
promote the company’s technology in Africa. See id. at 338.
Jefferson’s efforts on the company’s behalf involved a series of
trips and meetings. In particular, we explained, “acts
performed by Jefferson in exchange for the various bribe
payments included, inter alia”: “corresponding and visiting with
foreign officials”; “[a]ttempting to facilitate and promote”
certain business ventures; “[s]cheduling and conducting
meetings”; and “seeking to secure construction contracts.”
Id.
at 356. We were satisfied that these activities were in keeping
with Jefferson’s settled practice of serving constituents and
promoting trade in Africa and that, accordingly, the jury was
“entitled to conclude” that his actions “fall under the umbrella
of his ‘official acts.’”
Id. at 357-58.
ii.
Appellant next challenges the district court’s
instruction that a public official “need not have actual or
final authority over the end result sought by a bribe payor so
long as the alleged bribe payor reasonably believes that the
public official had influence, power or authority over a means
to the end sought by the bribe payor.” J.A. 7672. Appellant
argues that this is a misstatement of law: a bribe payor’s
subjective belief cannot convert a non-official act into an
66
official one. See Appellant’s Br. 55. Again, we are
unpersuaded.
The first part of the court’s instruction is
indisputably correct. 21 In Wilson v. United States, we held that
a bribery conviction will stand regardless of whether the bribe
recipient “had actual authority to carry out his commitments
under the bribery scheme.” 230 F.2d 521, 526 (4th Cir. 1956).
There, a jury convicted an adjutant general of soliciting bribes
from an insurance salesman in exchange for the right to sell
insurance at Fort Jackson -- even though the solicitations
occurred while the adjutant general was temporarily relieved of
his post. 22 See
id. at 523. We deemed the adjutant general’s
lack of actual authority “immaterial”: “Regardless of his
actual authority, it was still within his practical power to
influence the regulation of insurance sales as it had formerly
21
Appellant’s own proposed jury instructions concede the
point, stating that a public official “can perform an ‘official
act’ when it is a settled practice as part of the official’s
position for him to exercise influence over a government
decision even if he does not have authority to make the final
decision himself.” J.A. 753.
22
The statute of conviction in Wilson was 18 U.S.C. § 202,
which authorized penalties for any federal officer or employee
who “asks [for], accepts, or receives” a thing of value “with
intent to have his decision or action on any question, matter,
cause, or proceeding which may at any time be pending, or which
may by law be brought before him in his official capacity, or in
his place of trust or profit, influenced thereby.” 18 U.S.C.
§ 202 (1952) (current version at 18 U.S.C. § 201(b) (2012)).
67
been . . . .” Id. at 526; cf. United States v. Ring,
706 F.3d
460, 470 (D.C. Cir. 2013) (holding that a Department of Justice
attorney committed an “official act” pursuant to § 201(c) when
he forwarded an email to another government official in an
effort to expedite a foreign student’s visa application, even
though the attorney “lacked independent authority to expedite
visa applications”).
As to the second part of the court’s instruction, we
have no difficulty recognizing that proof of a bribe payor’s
subjective belief in the recipient’s power or influence over a
matter will support a conviction for extortion under color of
official right. See United States v. Bencivengo, 749 F.3d 205,
212-13 (3d Cir. 2014); United States v. Blackwood,
768 F.2d 131,
134-35 (7th Cir. 1985); United States v. Bibby,
752 F.2d 1116
(6th Cir. 1985); United States v. Rabbitt,
583 F.2d 1014, 1027
(8th Cir. 1978) (“The official need not control the function in
question if the extorted party possesses a reasonable belief in
the official’s powers.”). As the First Circuit explained in
United States v. Hathaway, the phrase “under color of official
right” “includes the misuse of office to induce payments not
due.”
534 F.2d 386, 394 (1st Cir. 1976). Accordingly, the
“relevant question” when contemplating a prosecution under this
statute is simply whether the government official “imparted and
68
exploited a reasonable belief that he had effective influence
over” the subject of the bribe. Id.
Plainly, Hobbs Act principles support the district
court’s instruction that a bribe recipient’s lack of actual
authority over a matter does not preclude “official act” status,
“so long as the alleged bribe payor reasonably believes” that
the recipient had “influence, power or authority over a means to
the end sought.” J.A. 7672. We are satisfied, therefore, that
this instruction was not erroneous with respect to the Hobbs Act
extortion charges.
It is less certain that a bribe payor’s subjective
belief in the recipient’s power or influence will suffice to
demonstrate an “official act” for purposes of an honest-services
wire fraud charge. The “intangible right of honest services,”
after all, is a right held by the public. See United States v.
Harvey, 532 F.3d 326, 333 (4th Cir. 2008). When a government
official agrees to influence a matter in exchange for money,
that official deprives the public of his “honest, faithful, and
disinterested services.”
Id. (internal quotation marks
omitted). The third party who pays the government official may
be a constituent of the official, but he is no victim, and the
honest-services wire fraud statute does not seek to protect him.
Appellant’s argument, therefore, that the subjective
beliefs of a third party in an honest-services wire fraud case
69
cannot “convert non-official acts into official ones” is
debatable. Appellant’s Br. 55 (emphasis omitted). This,
however, is not an issue that we need to decide. Even if the
court’s instruction on this point were erroneous, the error
would be harmless. See Ramos-Cruz, 667 F.3d at 496. As
Governor of Virginia, Appellant most certainly had power and
influence over the results Williams was seeking. We have no
doubt that the jury’s verdict on the honest-services wire fraud
charge would have been the same even if the instructions
required a finding that Appellant had the power to influence a
means to the end being sought.
Appellant has thus failed to show that the court’s
“official act” instructions, taken as a whole, were anything
less than a “fair and accurate statement of law.” United States
v. Smoot, 690 F.3d 215, 223 (4th Cir. 2012). Appellant’s claim
of reversible error with respect to the “official act”
instructions is therefore rejected.
c.
We likewise reject Appellant’s argument that the court
erred in refusing to give his proposed instructions on the
meaning of “official act.” We review a district court’s refusal
to give a specific jury instruction for abuse of discretion,
“and reverse only when the rejected instruction (1) was correct;
(2) was not substantially covered by the court’s charge to the
70
jury; and (3) dealt with some point in the trial so
important . . . that failure to give the requested instruction
seriously impaired the defendant’s ability to conduct his
defense.” United States v. Smith, 701 F.3d 1002, 1011 (4th Cir.
2012) (internal quotation marks omitted).
Appellant’s proposed instruction contained the
following passage:
[T]he fact that an activity is a routine
activity, or a “settled practice,” of an
office-holder does not alone make it an
“official act.” Many settled practices of
government officials are not official acts
within the meaning of the statute. For
example, merely arranging a meeting,
attending an event, hosting a reception, or
making a speech are not, standing alone,
“official acts,” even if they are settled
practices of the official. A government
official’s decisions on who[m] to invite to
lunch, whether to attend an event, or
whether to attend a meeting or respond to a
phone call are not decisions on matters
pending before the government. That is
because mere ingratiation and access are not
corruption.
J.A. 753.
This passage is problematic in a number of ways.
First, it is hardly evident that “[m]any” settled practices do
not qualify as “official acts.” J.A. 753. Even if this were
so, it is not a statement of law. Rather, it seems to us a
thinly veiled attempt to argue the defense’s case. Given the
71
risk of misleading the jury, we cannot fault the court for
declining to give this instruction.
The court was likewise justified in rejecting
Appellant’s assertion that “merely arranging a meeting,
attending an event, hosting a reception, or making a speech”
cannot constitute an “official act.” As detailed above, neither
Sun-Diamond nor any other precedent sweeps so broadly.
Moving on, Appellant has also failed to explain why
the court should have instructed the jury that “decisions on
who[m] to invite to lunch, whether to attend an event, or
whether to attend a meeting or respond to a phone call are not
decisions on matters pending before the government.” J.A. 753.
Even if we assume that most such decisions would not qualify as
official acts, we cannot accept the assertion that they may
never do so. Here, again, the proposed instruction goes too
far.
Finally, we hold that the court did not err in
refusing to instruct the jury, in language borrowed from
Citizens United v. Federal Election Commission, 558 U.S. 310,
361 (2010), that “mere ingratiation and access are not
corruption.” J.A. 753. Affording the talismanic significance
Appellant assigns to this language ignores its context; Citizens
United, a campaign-finance case, involved neither the honest-
services statute nor the Hobbs Act. Moreover, the Citizens
72
United Court employed the “ingratiation” language only after
providing a much broader definition of corruption: “The hallmark
of corruption is the financial quid pro quo: dollars for
political favors.” Citizens United, 558 U.S. at 359 (internal
quotation marks omitted). In the case at hand, this broader
definition was “substantially covered by the court’s charge to
the jury.”
Smith, 701 F.3d at 1011 (internal quotation marks
omitted). Thus, the court’s failure to include this language
did not “impair[]” Appellant’s “ability to conduct his defense.”
Id. (internal quotation marks omitted). The district court
instructed the jury that “there would be no crime” as long as
Appellant “believed in good faith that he . . . was acting
properly, even if he . . . was mistaken in that belief.” J.A.
7692. Appellant was thus free to argue that he believed in good
faith that any ingratiation or access he provided Williams was
entirely proper. If the jury believed that, it would have had
no choice but to acquit him.
Taken as a whole, Appellant’s proposed instruction on
the meaning of “official act” failed to present the district
court with a correct statement of law. He cannot now argue that
the court’s refusal to give that instruction was an abuse of
discretion.
73
3.
Quid Pro Quo
Appellant also contests the court’s instructions on
the “quid pro quo” elements of honest-services wire fraud and
Hobbs Act extortion, maintaining that the court’s gloss on this
term would criminalize the lawful receipt of “goodwill” gifts to
lawmakers.
In this context, the term “quid pro quo” refers to “an
intent on the part of the public official to perform acts on his
payor’s behalf.” Jefferson, 674 F.3d at 358; see also Sun-
Diamond, 526 U.S. at 404-05 (defining “quid pro quo as “a
specific intent to give or receive something of value in
exchange for an official act” (emphasis omitted)). Accordingly,
in its instructions on the honest-services wire fraud charge,
the district court explained that the jury must find that
Appellant demanded or received the item of value “corruptly” --
i.e., with an “improper motive or purpose.” J.A. 7669-70; see
United States v. Quinn,
359 F.3d 666, 674 (4th Cir. 2004)
(defining “[c]orrupt intent” under 18 U.S.C. § 201(b)).
Likewise, in its Hobbs Act instruction, the court stated that
Appellant must have “obtained a thing of value to which he was
not entitled, knowing that the thing of value was given in
return for official action.” J.A. 7682; see
Evans, 504 U.S. at
268.
74
Appellant’s contention is not that the court’s
instructions were incorrect but, rather, that they were
incomplete. In particular, Appellant asserts that the court
failed to make the jury aware of a critical limitation on
bribery liability when it neglected to state, per his proposed
instructions, that “[a] gift or payment given with the
generalized hope of some unspecified future benefit is not a
bribe.” J.A. 751; accord id. at 756. Appellant claims that
this omission seriously impaired his defense because “a central
defense theory was that Governor McDonnell believed Williams was
simply trying to cultivate goodwill.” Appellant’s Br. 59-60.
Appellant’s statement of the law is correct, so far as
it goes. See United States v. Jennings, 160 F.3d 1006, 1013
(4th Cir. 1998). “It is universally recognized that bribery
occurs only if the gift is coupled with a particular criminal
intent. That intent is not supplied merely by the fact that the
gift was motivated by some generalized hope or expectation of
ultimate benefit on the part of the donor.” United States v.
Arthur,
544 F.2d 730, 734 (4th Cir. 1976) (citations omitted)
(reversing a conviction for misapplication of bank funds
pursuant to 18 U.S.C. § 656). The bribe payor must have more
than a “‘[v]ague expectation[]’” that the public official will
reward his kindness, somehow or other.
Jennings, 160 F.3d at
1013 (quoting United States v. Allen,
10 F.3d 405, 411 (7th Cir.
75
1993)). He must harbor an intent to secure a “specific type of
official action or favor in return” for his largesse. Id. at
1014 (emphasis omitted).
The Government never disputed these points. Indeed,
there is little reason to doubt that if the defense had
submitted a written instruction relating to goodwill gifts, the
court would have accepted it. However, the defense did no such
thing. Instead, its proposed “goodwill gift” language was
tucked into the penultimate sentence of the defense’s proposed
instructions on the definition of “corruptly,” see J.A. 751,
756, a term the court took care to explicate, see id. at 7670
(explaining that bribery requires a corrupt intent -- meaning,
here, that the public official must demand, seek, or receive the
item of value “knowingly and dishonestly for a wrongful
purpose”). As outlined above, the court emphasized the
essentiality of the prosecution’s burden to prove corrupt intent
when it instructed the jury on Appellant’s “good faith” defense.
See J.A. 7692 (charging the jury that “if a defendant believed
in good faith that he or she was acting properly, even if he or
she was mistaken in that belief, and even if others were injured
by his or her conduct, there would be no crime”). Appellant was
adamant, during the trial conference, about the importance of
his “good faith” defense in this case, referring to it as “our
critical defense.”
Id. at 7360.
76
It is not enough, in any event, for Appellant to show
that his proposed instructions contained a correct statement of
law. If, as it happens, the rejected instruction was
“substantially covered by the court’s charge to the jury,” there
is no reversible error. United States v. Passaro, 577 F.3d 207,
221 (4th Cir. 2009) (internal quotation marks omitted). Put
succinctly, we are satisfied that the court’s “quid pro quo”
instructions were adequate. In its Hobbs Act instruction, the
court made clear that extortion under color of official right
requires an intent to have the public official “take specific
official action on the payor’s behalf.” J.A. 7682-83 (emphasis
supplied). Similarly, in its instruction on honest-services
wire fraud, the court referred to the “quo” in a quid pro quo
exchange as “the requested official action” -- signaling that an
official action necessarily entails some particular type of act
within the parties’ contemplation at the time of the exchange.
Id. at 7669.
In sum, we are satisfied that the court properly
instructed the jury on the “quid pro quo” requirement of the
charged offenses. Accordingly, we reject Appellant’s claim of
instructional error in that respect.
77
B.
Sufficiency of the Evidence
This leads us to Appellant’s claim that the
Government’s evidence was insufficient to support the
convictions. “We review a challenge to the sufficiency of the
evidence de novo . . . .” United States v. Bran, 776 F.3d 276,
279 (4th Cir. 2015). If, viewing the evidence in the light most
favorable to the Government, we find there is substantial
evidence to support the conviction, we will affirm the jury
verdict. See United States v. Hager,
721 F.3d 167, 179 (4th
Cir. 2013). “Substantial evidence is such evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.”
Id. (internal quotation marks omitted).
To review, the Government set out to prove that
Williams and Appellant engaged in a corrupt quid pro quo.
Williams, we know, supplied the “quid,” and plenty of it. Among
other things, he provided Appellant’s family -- generally at the
behest of Appellant or Mrs. McDonnell -- with multiple five-
figure payments and loans, expensive getaways, shopping trips,
golf outings, and a Rolex watch. The greater challenge for the
Government was persuading the jury that Williams’s payments to
Appellant and his family were “pro quo.” In short, the
Government was obligated to prove, first, that Williams’s
78
payments came with a corrupt understanding and, second, that the
key to that understanding was the expectation that Appellant
would perform certain official acts for Williams’s benefit.
1.
Evidence of Official Acts
In the first place, we reject Appellant’s contention
that the Government’s evidence cannot satisfy the “official act”
requirement.
An “official act,” as defined by statute, requires the
existence of some “question, matter, cause, suit, proceeding or
controversy.” 18 U.S.C. § 201(a)(3). Here, the Government
presented evidence of three questions or matters within
Appellant’s sphere of influence. The first of these was whether
researchers at any of Virginia’s state universities would
initiate a study of Anatabloc. The second was whether the
state-created Tobacco Indemnification and Community
Revitalization Commission (“Tobacco Commission”) would allocate
grant money for the study of anatabine. The third was whether
the health insurance plan for state employees in Virginia would
include Anatabloc as a covered drug.
These were all government matters, and Appellant, as
head of the Commonwealth’s government, was in a prime position
to affect their disposition. The Constitution of Virginia vests
the Governor with “[t]he chief executive power of the
79
Commonwealth.” Va. Const. art. V., § 1. State law provides
that the Governor “shall have the authority and responsibility
for the formulation and administration of the policies of the
executive branch.” Va. Code Ann. § 2.2-103.A. These powers
include the authority to approve the health insurance plans
provided to public-sector employees at the state and local
level. See id. §§ 2.2-1204.A, -2818.A. In addition, among his
myriad other powers, the Governor appoints 12 of the 13 members
of the State Council of Higher Education for Virginia, see
id.
§ 23-9.3.C.; all members serving on the boards of visitors of
Virginia Commonwealth University and the University of Virginia,
see
id. §§ 23-50.6(a), -70.A; and a majority of commissioners on
the Tobacco Commission, see
id. § 3.2-3102.A.
With power comes influence. As the witness Jerry
Kilgore, Star’s lawyer, put it: “[T]he Governor is the Chief
Executive of the Commonwealth. He has this bully pulpit, if you
will, to go out and talk about issues.” J.A. 4374. The
evidence at trial made clear that Star executives wanted
Appellant to use his prominence and influence to the company’s
advantage. See e.g., id. at 3898 (former Star President Perito
testifying that when “the Chief Executive of the
Commonwealth . . . embraces the worthiness of the
product[,] . . . [i]t gives it a type of credibility”); see also
id. at 2314 (Williams testifying that the opportunity to
80
“showcase” a product at the Governor’s Mansion “automatically”
imbues the product with “credibility”).
To the extent, then, that Appellant made any
“decision” or took any “action” on these matters, the federal
bribery laws would hold that decision or action to be
“official.” 18 U.S.C. § 201(a)(3). As we have explained, it
was not necessary for the Government to prove that Appellant
actually took any such official action. What the Government had
to show was that the allegedly corrupt agreement between
Appellant and Williams carried with it an expectation that some
type of official action would be taken. See United States v.
Giles, 246 F.3d 966, 973 (7th Cir. 2001). Here, the Government
exceeded its burden. It showed that Appellant did, in fact, use
the power of his office to influence governmental decisions on
each of the three questions and matters discussed above.
First, in August 2011, Appellant asked his Secretary
of Health, Dr. Hazel, to send a deputy to a “short briefing”
with Mrs. McDonnell at the Governor’s mansion. In his email to
Hazel, Appellant made clear that the subject of the briefing
would be “the Star Scientific anatablock trials planned in va at
vcu and uva.” G.S.A. 80. Naturally, the staff complied. As
one staffer, Molly Huffstetler, wrote in an email to her
colleagues: “[W]e will do what we can to carry out the desires
of the Governor and First Lady.” Id. at 81.
81
That same month, Appellant and his wife hosted a
product launch for Anatabloc at the Governor’s Mansion. Prior
to the event, Mrs. McDonnell explained to a staff member that
one of the purposes of the event was to “encourag[e]
universities to do research on the product.” J.A. 3608.
Invitees included Dr. Clore, an associate vice president for
clinical research at VCU, and Dr. Lazo, former associate dean
for basic research at the UVA School of Medicine. Appellant
spoke with Lazo, asking him and other attendees whether they
thought “there was some scientific validity” to the pre-clinical
studies of Anatabloc presented at the event and “whether or not
there was any reason to explore this further; would it help to
have additional information.” J.A. 3344. Appellant also asked
whether the development of Anatabloc could “be something good
for the Commonwealth, particularly as it relates to [the]
economy or job creation.” Id.
A series of emails exchanged in February 2012 between
Appellant, his wife, and chief counsel Eige shows Appellant
continuing to push for state university research on Anatabloc.
In a February 17 email, Appellant told Eige: “Pls see me about
anatabloc issues at VCU and UVA. Thx.” G.S.A. 157. Eige would
later express his discomfort with Appellant’s involvement in the
issue, telling Kilgore: “I’ve been asked by the Governor to call
and put -- you know, show support for this research, and I’m
82
just -- I just don’t think we should be doing it.” J.A. 4374
(internal quotation marks omitted).
Just a week before Appellant’s email to Eige, Mrs.
McDonnell sent a series of emails of her own asking Eige to get
in touch with Williams. The first email bore the subject line:
“FW: Anatabine clinical studies – UVA, VCU, JHU.” This email
said that Williams “has calls in to VCU & UVA & no one will
return his calls.” G.S.A. 147. The next day, while sitting
right next to Appellant, Mrs. McDonnell emailed Eige again:
Pls call Jonnie today [and] get him to fill
u in on where this is at. Gov wants to know
why nothing has developed w studies after
Jonnie gave $200,000. . . . Gov wants to
get this going w VCU MCV. Pls let us know
what u find out after we return.
Id. at 154. The email included Williams’s cell phone number.
Eige later testified that he understood the emails to mean that
Mrs. McDonnell wanted him to “[s]omehow reach out and
see . . . if we couldn’t elicit some type of response from these
two universities.” J.A. 3214.
Appellant argues that these actions -- asking a
staffer to attend a briefing, questioning a university
researcher at a product launch, and directing a policy advisor
to “see” him about an issue -- are too insignificant to
constitute official acts. We disagree. With each of these
acts, Appellant exploited the power of his office in furtherance
83
of an ongoing effort to influence the work of state university
researchers. Accordingly, a reasonable juror could find, beyond
a reasonable doubt, that the actions contemplated under
Appellant’s agreement with Williams were “official” in nature.
A jury could likewise conclude that Appellant
performed an “official” act when he discussed Anatabloc at the
March 2012 meeting with two high-ranking administration
officials: Secretary of Administration Hicks-Thomas and
Department of Human Resource Management Director Sara Wilson.
There, amid a discussion about the state employee health
insurance plan, Appellant pulled a bottle of Anatabloc from his
pocket and showed the pills to Hicks-Thomas and Wilson. As
Hicks-Thomas recalled, Appellant “said that he had been taking
[the pills] and that they were working well for him, and that he
thought it would be good for . . . state employees.” J.A. 4227.
Appellant then asked Hicks-Thomas and Wilson if they would be
willing to meet with Star. Here, again, the evidence suggests
that Appellant used his position as Governor to influence a
matter of importance to Virginia. This evidence was more than
sufficient to support the jury’s verdict.
2.
Evidence of a Quid Pro Quo
Next we turn to whether the Government presented
evidence sufficient to support a conclusion that there was a
84
corrupt quid pro quo, “a specific intent to give or receive
something of value in exchange for an official act.” Sun-
Diamond, 526 U.S. at 404–05 (emphasis omitted). To establish
the necessary intent, the Government had to present evidence of
“an exchange of money (or gifts) for specific official action.”
Jennings, 160 F.3d at 1014. Direct proof of a corrupt intent is
not necessary, and “[s]uch an intent may be established by
circumstantial evidence.”
Id.
At trial, the Government presented an array of
evidence to show Appellant’s corrupt intent. Critically, the
Government’s evidence demonstrated a close relationship between
Appellant’s official acts and the money, loans, gifts, and
favors provided by Williams to Appellant and Mrs. McDonnell.
With respect to the official acts alleged by the Government, a
“quo” came on the heels of each “quid.” For example:
• Between July 28 and July 31, 2011,
Williams provided lodging, transportation,
and a boat for the McDonnells’ Smith
Mountain Lake vacation. Upon returning
home on July 31 -- after a three-hour trip
home in Williams’s Ferrari -- Appellant
directed Hazel to send a deputy to meet
with Mrs. McDonnell about Anatabloc. On
August 1, Huffstetler, Williams, and Mrs.
McDonnell met at the Governor’s Mansion to
discuss Anatabloc clinical trials at UVA
and VCU.
• Later that month, on August 31, 2011,
McDonnell hosted the launch of Anatabloc
at the Governor’s Mansion. State
employees arranged the event, and
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invitations to the launch bore the
Governor’s seal. UVA and VCU researchers
attended as invited representatives of
their institutions, boxes of Anatabloc
were placed at each place setting, and
Williams and Mrs. McDonnell spoke at the
event.
• Between February and March 2012, Appellant
and Williams had a series of discussions
regarding a $50,000 so-called loan. On
February 16, Appellant checked in with
Williams about documents relating to the
monies. Six minutes later, Appellant
emailed Eige, asking Eige to see him about
the Anatabloc studies.
• During these payment negotiations, Mrs.
McDonnell and Appellant encouraged
Williams to “invite all the doctors that
[he] want[ed] to invite” to the healthcare
industry leaders reception held at the
Governor’s Mansion on February 29. J.A.
2312. The list of invitees for the event
was revised to include Williams’s guests
at the direction of Appellant and Mrs.
McDonnell.
• On the day of the healthcare leaders
event, Appellant met with Williams about a
loan of Star Scientific shares worth
$187,000. J.A. 6767-72. Less than five
hours later, Appellant saw Williams at the
event. Appellant’s briefing materials for
the evening specifically identified the
“[p]ersonal doctors of McDonnells,” which
included Williams’s guests, doctors
affiliated with Anatabloc. J.A. 6775.
Following the event, Williams took
Appellant, Mrs. McDonnell, and two of
these doctors out to dinner.
• On March 6, 2012, as a result of the
negotiations, Williams wrote a $50,000
check to Mobo. Then, on March 21,
Appellant met with Hicks-Thomas to discuss
covering Anatabloc under the state health
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plan. Appellant also asked Hicks-Thomas
to meet with Star representatives.
The temporal relationship between the “quids” and “quos” -- the
gifts, payments, loans, and favors and the official acts --
constitute compelling evidence of corrupt intent.
Throughout the two years during which Appellant was
performing the official acts alleged, Williams lavished
Appellant with shopping sprees, money, loans, golf outings, and
vacations:
• In April 2011, Mrs. McDonnell contacted
Williams about a political rally and
shopping in New York. On April 13,
Williams spent approximately $20,000 on
Mrs. McDonnell’s New York City shopping
spree. That evening, Williams sat next to
Appellant and his wife during the
political rally.
• In May 2011, Williams loaned the
McDonnells $50,000 and provided $15,000 to
cover the McDonnells’ daughter’s wedding
reception. When she requested the loan,
Mrs. McDonnell said, “The Governor says
it’s okay for me to help you and -- but I
need you to help me.” J.A. 2231 (internal
quotation marks omitted). In the
meantime, Appellant passed an article
about Anatabloc along to members of his
administration.
• On May 29, 2011, Williams paid $2,380.24
for Appellant and his sons to enjoy golf
and amenities at Kinloch Golf Club.
• On January 7, Williams paid $1,368.91 for
another of Appellant’s golf outings.
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• During the 2012 Memorial Day weekend,
Williams footed the bill for the
McDonnells’ vacation, spending more than
$7,300.
None of these payments were goodwill gifts from one friend to
another. Indeed, Appellant and Williams did not know each other
until after Appellant was elected Governor. As Williams
testified with regard to the money he provided, “I was loaning
[Appellant] money so that he would help our company.” Id. at
2360. He expected Appellant “to help me move this product
forward in Virginia” by “assisting with the universities, with
the testing, or help with government employees, or publicly
supporting the product.”
Id. at 2355. And since at least their
shared cross-country flight in October 2010, Appellant knew what
Williams wanted for his company: independent studies of
Anatabloc conducted by Virginia universities.
This evidence established that Appellant received
money, loans, favors, and gifts from Williams in exchange for
official acts to help Williams secure independent testing of
Anatabloc. In light of the foregoing, the jury could readily
infer that there were multiple quid pro quo payments, and that
Appellant acted in the absence of good faith and with the
necessary corrupt intent. See United States v. Hamilton, 701
88
F.3d 404, 409 (4th Cir. 2012) (“[I]ntent can be implied -- and
it is the jury’s role to make such factual inferences.”). 23
In sum, Appellant has thereby failed to sustain his
heavy burden of showing that the Government’s evidence was
inadequate. See United States v. Engle, 676 F.3d 405, 419 (4th
Cir. 2012) (“A defendant bringing a sufficiency challenge must
overcome a heavy burden, and reversal for insufficiency must be
confined to cases where the prosecution’s failure is clear.”
(citations omitted) (internal quotation marks omitted)).
Accordingly, the trial evidence was sufficient to support each
of Appellant’s convictions.
IV.
Appellant received a fair trial and was duly convicted
by a jury of his fellow Virginians. We have no cause to undo
what has been done. The judgment of the district court is
AFFIRMED.
23
Significantly, the jury found the necessary corrupt
intent despite being instructed extensively on Appellant’s “good
faith” defense and hearing from an array of witnesses who
testified to Appellant’s honesty, integrity, respect for the
law, and good character. The jury was instructed not only that
“if a defendant believed in good faith that he or she was acting
properly . . . there would be no crime,” but also that “evidence
of good character alone may create a reasonable doubt as to a
defendant’s guilt.” See J.A. 7692, 7694. Appellant’s character
witnesses included cabinet members from his time as Governor of
Virginia, as well as longtime friends such as Father Timothy R.
Scully, a Catholic priest and University of Notre Dame professor
who met Appellant in 1972 when they became college roommates.
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