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Home / Courts / 4th Circuit / Criminal Practice — Ex-Governor’s Bribery Conviction Upheld

Criminal Practice — Ex-Governor’s Bribery Conviction Upheld

U.S. v. McDonnell (Lawyers Weekly No. 15-01-0705, 89 pp.) (Thacker, J.) No. 15-4019, July 10, 2015; USDC at Richmond, Va. (Spencer, J.) 4th Cir.

Holding: The 4th Circuit affirms former Virginia Gov. Robert F. McDonnell’s conviction on 11 counts of corruption, rejecting all his claims of error, including his principal claim that the district court’s jury instructions defined bribery and “official acts” too broadly; the government’s evidence demonstrated a close relationship between McDonnell’s official acts and the money, loans, gifts, and favors provided by a company CEO to McDonnell and his wife in exchange for official acts to help secure independent testing of the company’s new product.

Federal prosecutors charged McDonnell and his wife with accepting 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, as urged by company CEO Jonnie Williams.

Claims of Error

There was no error in the district court’s refusal to sever McDonnell’s trial from that of his wife and co-defendant. 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. We affirm the denial of appellant’s motion to sever.

Nor did the court err in conducting voir dire regarding pretrial publicity. The court asked venire members, 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 sit down if, despite this, they believed they were able to put aside whatever they had heard, listen to the evidence and be fair to both sides.  The court invited defense counsel to identify any specific venire members it would like to question further on this subject. Appellant’s counsel identified 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 anyone else he wished to question. “Not on publicity,” counsel said. We are satisfied that the trial court’s questioning in this case was adequate.

Appellant objects to the exclusion of his proposed expert testimony about Williams’ cooperation agreement with the government as well as expert testimony about the “Statements of Economic Interest.” Expert testimony cannot be used for the sole purpose of undermining a witness’s credibility. We reject these claims, as the trial court’s decisions to exclude this evidence were not abuses of discretion. The court also did not err in excluding expert testimony about the Statements of Economic Interest offered by a private attorney who formerly worked in 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. The district court reasonably concluded this testimony would not have been helpful.

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 they would not unduly prejudice appellant, as there had been no suggestion that he violated Virginia’s ethics laws or reporting requirements.

Jury Instructions

Appellant’s claim with respect to the jury instructions is that the court defined bribery far too expansively. The first of these is the honest services wire fraud statute, 18 U.S.C. §§ 1343, 1346. 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.’” The district court provided a near-verbatim recitation of the statutory provisions in its honest-services wire fraud instructions.

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. It is possible to commit extortion by obtaining property “under color of official right.”

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.

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 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.” First, the court’s instruction was not unprecedented. To a large extent, the instruction echoed the “official act” instruction in U.S. v. Jefferson, 674 F.3d 332 (4th Cir. 2012).

Second, the instruction here was not misleading. 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. The consummation of an “official act” is not an element of the offense.  An “official act” may pertain to matters outside of the bribe recipient’s control.

We have no difficulty recognizing that proof of a bribe payer’s subjective belief in the recipient’s power or influence over a matter will support a conviction for extortion under color of official right.

‘Official Act’

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 payer reasonably believes” the recipient had “influence, power or authority over a means to the end sought.” We are satisfied, therefore, that the court’s instruction was not erroneous with respect to the Hobbs Act extortion charges.

It is less certain that a bribe payer’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. Even if the court’s instruction on this point were erroneous, the error would be harmless. 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.

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 his wife – with multiple five-figure payments and loans, expensive getaways, shopping trips, golf outings, and a Rolex watch. As the “pro quo,” 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 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.

Convictions affirmed.

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