mcdonnell appellate brief for bond pending appeal

8/9/2019 McDonnell Appellate Brief for Bond Pending Appeal

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ORAL ARGUMENT REQUESTED

No. 15-4019

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT__________

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT F. MCDONNELL,

Defendant-Appellant.

_____________

On Appeal from the United States District Court for the Eastern District of

Virginia, Richmond Division, James R. Spencer, District Judge

_____________

DEFENDANT-APPELLANTS REPLY ON MOTION FOR RELEASE

PENDING APPEAL

_____________

John L. BrownleeHOLLAND & KNIGHT LLP

800 17th Street N.W.Suite 1100

Washington, DC 20006Telephone: (202) 828-1854

Facsimile: (202) 955-5564

Noel J. FranciscoCounsel of Record

Henry W. AsbillCharlotte H. Taylor

James M. BurnhamJONES DAY

51 Louisiana Avenue N.W.Washington, DC 20001

Telephone: (202) 879-3939Facsimile: (202) 626-1700

[email protected]

Counsel for Defendant-Appellant

Robert F. McDonnell

Appeal: 15-4019 Doc: 38-1 Filed: 01/25/2015 Pg: 1 of 19


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The Governments Opposition largely ignores the legal issue before this

Court and instead offers a lengthy, distorted recitation of facts. The

Governments tendentious account demonstrates the degree to which the parties

contest the record. But one thing the parties donot disagree about is the nature of

the alleged official acts. The Government all-but-concedes that Mr. McDonnell

never promised Williams anything and never did anything that suggested he

wanted Virginias government to do anything for Williams. No court has ever

upheld a corruption conviction absent such evidence, while numerous courts have

overturned them. Whether the evidence satisfied the legal definition of official

action presents a substantial question.

The Government sought at trial (as it does here) to mask this deficiency with

harsh condemnation and misleading spin. But that prosecutorial strategy only

underscores the importance of carefully instructing the jury on the scope and

limitations of official action. Instead, the district court gave the jury a

Rorschach-inkblot that meant whatever they wanted it to mean. It created that

instruction by importing differentelements of the crimeinto official action, and

by rejecting even the most modest limitations, e.g.: [M]ere ingratiation and access

are not corruption and the fact that an activity is a routine activity, or a settled

practice, of an office-holder does not alone make it an official act. RFM Prop.

Jury Instructions, Dkt.287, at 79. The instructions present a second substantial



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question.

Voir dire on pretrial publicity presents a third. The district court never asked

potential jurors whether their exposure to negative publicity had caused them to

form opinions about guilt. The parties thus did not know and could not know

which jurors formed opinions prior to trial. The Government does not dispute that

this is a question of first impression post-Skilling, instead seeking to avoid it by

fabricating a defense waiver of more probing questions. The record confirms,

though, that this issue is likewise substantial. (Given these disputes, attached are

the transcript pages concerning pretrial publicity, Exhibit A, and other pages cited

herein, Exhibit B.)

ARGUMENT

The Governments Opposition essentially ignores whether Mr. McDonnells

appeal presents a close question that could be decided either way, United States

v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991)a much lower standard than

likelihood of success. The Government emphasizes that Mr. McDonnell was

convicted by a jury and lost in district court. But that is always true for defendants

seeking bond. It says nothing about whether this appeal raises substantial

questions of law or fact, which this Court reviews de novo. See, e.g., United States

v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985); United States v. Suado Mohamed

Ali, 735 F.3d 176, 188 (4th Cir. 2013). Courts thus routinely grant bond pending



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appeal in cases like this, including in Jefferson. Mr. McDonnell easily satisfies

this standard.

I.

The Governments Tendentious Factual Recitation Cannot Mask The

Substantial Question Whether Mr. McDonnell Took Official Action.

A. Mr. McDonnell cannot, in this short reply, rebut every Government

distortion. Five examples show why this Court should be highly skeptical of the

Governments drive-by recap of this nearly-six-week trial:

First, the Government claims the jury found Mr. McDonnell received

those payments ... in exchange for helping Williams on his goal of obtaining

studies at state medical schools. Opp.4. That is false. The jury made no such

finding. The jury instructions never mention studies in explaining the elements of

the offenses, instead inviting the jury to convict Mr. McDonnell for sending any

email, appearing at any event, or arranging any meetingregardless of their

purpose. And that is precisely how the Government argued its case, telling the jury

it was welcome to convict Mr. McDonnell for anything he did on the issue of

Virginia business development that was in his official capacity as Governor

because [w]hatever it was, its all official action. Tr.5869-70. That is because

the essence of the Governments case was not studies; it was that Mr. McDonnell

was supposedly lending the prestige of the governors office to Williams (per

TheWashington Posts stock language). Matt Zapotsky,Ex-Attorneys General Ask



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to Support McDonnell Request for Bond Pending Appeal, WASH. POST, Jan. 14,

2015.

Second, the Government blatantly mischaracterizes the following statement

Williams claimed Mrs. McDonnell made: The Governor says its okay for me to

help you andbut I need you to help me. I need you to help me with this financial

situation. Opp.7 (quoting Tr.680). The Government changes its meaning by

omitting the critical exchange immediately after:

Q: Well, to be clear, shes saying that shes going to help you, but she'snot promisingyouthatthe Governoris going to help you, right?

A: No.

Q: And she never tells you at this meeting, I'll getBobto do X, Y or Z

if you give us the money?

A: No.

Tr.680-81 (emphases added).

Third, the Government implies that Mr. McDonnell and Williams had an

agreement. But the Government conceded below that [t]here [was] no express

agreement in this case. Tr.6045. All the jury needed to find was that Mr.

McDonnellbased on supposed winks and nods, Tr.6101solicited or

received a thing of value at least in part in exchange for the performance of

official action, Tr.6101-02 (emphasis added). Those loose requirements reinforce

the importance of defining official action correctly.



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Fourth, the Government claims Mr. McDonnells support of Williamss

product was clear to university officials. Opp.12. Again false. The only time

Mr. McDonnell interacted with anyone at UVA or VCU in connection with Star

was at the mansion event. The two university officials who attended that event

testified Mr. McDonnell never spoke favorably about Star. Rather, UVAs Dr.

Lazo testified that Mr. McDonnell asked whether there was some scientific

validity to the studies, whether there was any reason to explore this further, and

whether this could be good for the Commonwealth. Tr.1793-95;see also Bond

Mot. 16. And VCUs Dr. Clore testified that the Governor spoke at a high level

about health and wellness in Virginia and the compound. Tr.1582. As for Dr.

Clores good friend [of the Governor] email, Opp.12, the Government omits that

Dr. Clores understanding was based solely on what Williams consultant

represented to him, not anything Mr. McDonnell said or did. Tr.1572.1 That is, no

doubt, why nobody ever applied for grants, no grants were made, and nothing

happened for Star at UVA or VCU.

1

The Governments invocation of the pro/con list is particularly egregiousbecause the person who created it never interacted with anyone from the

McDonnell Administration. Tr.2772. She based her inference of politicalpressure from Governor on a Google search revealing a photograph of Mr.

McDonnell, Tr.2777taken months before the supposed conspiracythat Star

posted to Facebook after the McDonnell Administration forbade it from suggestingthat Mr. McDonnell was endorsing Star, Tr.1422-24.



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Fifth, the Government criticizes Mr. McDonnell for supposed deficits in his

state disclosure forms. But it never mentions the undisputed fact that [t]here has

been no suggestion in this case that Mr. McDonnell violated Virginia law.

Tr.6125. Virginia law did not require Mr. McDonnell to (1) list gifts to family

members, (2) identify by name someone who provides a loan, or (3) list loans to

LLCs, even jointly owned ones.2 (Throughout the so-called scheme, Mr.

McDonnell publicly disclosed numerous things from Williams. Tr.4593-94, 4782-

83.) Mr. McDonnell obviously did not break federal law by failing to over-

disclose under statelaw.3

B. But ultimately none of this matters. Not even the Government claims

Mr. McDonnell asked anyone to do anything besides hear Williams out and do

whatever they believed was in Virginias best interests. Mr. McDonnell arranged

only one meeting involving Williams during the conspiracywhich he did not

2Nor must officials list gifts fromspouses. The Government misleadinglyrefers to the Rolex watch that Williams bought him, Opp.13, but the evidenceshowed that Mrs. McDonnell gave the watch as a Christmas gift from her. Mr.

McDonnell did not discover its true source, or about the shopping spreeneither

of which support any convictionuntil the investigation became public a-year-

and-a-half later.3

Recognizing the weakness of the record, the Government contends that Mr.McDonnells denials are affirmative evidence of the opposite. But the jury made

no special findings and the trial court rejected the Governments request to findthat Mr. McDonnell lied. SeeSent.Tr.28, Ex. C. And the cases the Government

cites do not support its assertion, which, if true, would mean that in cases in

which defendants testify, the evidence invariably would be sufficient to sustain theconviction. United States v. Zeigler, 994 F.2d 845, 849 (D.C. Cir. 1993).



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attendand the testimony of the staffer (Molly Huffstetler) who attended that

meeting proves Mr. McDonnell was not trying to influence anyone:

Q: What did you understand the desires of the Governor and theFirst Lady to be specific to this issue?

A: At the time of the note, nothing more than attending the

meeting. Tr.1493.

Q: When you wrote this [blow-off] email, what did you understand

your job to be going forward?

A: Nothing at the time of the written email. Tr.1507.

Q: So after this meeting you still had no idea what [Mrs.McDonnells] desires, if any, were with respect to Mr. Williams or

Star. Is that fair?

A: Shy of attending the meeting, no. Tr.1529.

Indeed, Ms. Huffstetler agreed that Mr. McDonnell never interfere[d] with that

decision-making process by [her and her] colleagues in [her] office. Tr.1520.

C. The Government has not cited a single case affirming a conviction on

similar facts.4 By contrast, numerous cases Mr. McDonnell cites are directly

4The three cases it does cite simply prove that its theory is unprecedented:

United States v. RingsupportsMr. McDonnell by emphasizing that a

purely informational inquiry is not an official act. 706 F.3d 460, 468-70(D.C. Cir. 2013). That is all Mr. McDonnell did when he emailed a

question to his in-house counsel.

United States v. Rosenconsidered a different issue, but made clear that

official actions are things like voting in a certain manner or supportinggrants to certain businesses. 716 F.3d 691, 701 (2d Cir. 2013).



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contrary. Bond Mot. 8-13. The existence of those decisions demonstrates that

reasonable jurists could disagree about the Governments theory, which, again, is

all Mr. McDonnell need show. The Governments half-hearted attempt to

distinguish these decisions confirms the close question.

First, the Government dismisses the language in the Supreme Courts

unanimous decision in United States v. Sun-Diamond Growers of Cal., 526 U.S.

398 (1999), as dicta. Even if true, that wouldstill create a substantial question,

since inconvenient Supreme Court statements may not be so easily wished away.

United States v. Chappell, 691 F.3d 388, 394 (4th Cir. 2012). And the

Governments claim that United States v. Jefferson, 674 F.3d 332 (4th Cir. 2012),

dismissed Sun-Diamond as dicta is wrong. What this Court actuallyheld was

that Sun-Diamond did not supersede[] Birdsall, id. at 356a point Mr.

McDonnell does not contest. This Court never rejected Sun-Diamonds clear

statement that customary actionsjust like Mr. McDonnells are not official ones.

Second,the Government does not even attempt to distinguish United States

v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978), effectively conceding that decision

forecloses its position. It instead claims thatRabbitt is bad law. Opp.28. But the

(continued)

In United States v. Moore, the alleged official acts involved altering

specific government policies. 525 F.3d 1033, 1041 (11th Cir. 2008).



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federal courts have cited Rabitt over 100 times and the Eighth Circuit reaffirmed

Rabbitts vitality in United States v. Loftus, explaining that Mr. Rabbitts

conviction was properly vacated since he never promise[d] to use his official

position to influence any officials. United States v. Loftus, 992 F.2d 793, 796 (8th

Cir. 1993). Indeed, United States v. Urciuolirelieddirectly on Rabbitt. See 513

F.3d 290, 296 (1st Cir. 2008).

Finally, as to Urciuoli, the Government notes that the First Circuit found

some conduct was official action. But the courts distinction proves Mr.

McDonnells point. It held that a legislator urging local officials to route

ambulances to the bribe-payors hospital was not criminal because there was no

indication that [the legislator] invoked any purported oversight authority or

threatened to use official powers in support of his advocacy. Id.at 296. It drew a

sharp line between trad[ing] on the reputation, network and influence that

comes with political office, id. at 296, and us[ing] his legislative powers as a

threat to extract favorable treatment for [the bribe-payor], thereby misusing his

official power over legislation, id. at 297. Urciuoli rested on the critical

difference between acts that use (or threaten to use) official power[s], id.at 295-

97, and acts that do not, id.at 296. The latter acts are not official.

The Government has cited no evidence that Mr. McDonnell used his official

powers to do anything for Williams, who never received a penny from the Virginia



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government over a supposedly-two-years-long conspiracy that, if real, was the

least successful bribery scheme in history. Whether the Government proved Mr.

McDonnell took official action under federal law presents a substantial question.

II.

The District Courts Unprecedented Jury Instructions Present A

Substantial Question.

The foregoing shows that the jury instructions likewise present a substantial

question. The Government disagrees, claiming the trial court delivered an

instruction nearly identical to Jefferson. Opp. 1, 21, 23. That is irrelevant and

wrong. It is irrelevant because jury instructions must be adapted to each case. Mr.

McDonnell argued that his actions were not official, yet the jury was not

instructed on anyof that terms basic limits. It is wrong because the district courts

instruction was not identicalor even nearly identicaltoJefferson. Instead, at

the Governments urging, the district court altered and expanded the Jefferson

instruction in critical ways.

A. Even if the instructions were identical to Jefferson, it would be

irrelevant. As Mr. McDonnell has explained, see Bond Motion at 18 n.11,

countless courts have held [j]ury instructions should be drawn with reference to

the particular facts of the case on trial. United States v. Holley, 502 F.2d 273, 276

(4th Cir. 1974);see also, e.g.,Taita Chem. v. Westlake Styrene, 351 F.3d 663, 670

(5th Cir. 2003).



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The Government ignores this rule, but this case exemplifies its rationale.

Mr. McDonnells central defense was that, while he obviously did things governors

customarily do hundreds of times a week, he never took official action on behalf

of Williams. There is a fundamental difference between actions like a Governor

asking his counsel to see me (this case) and actions like a Congressman

pressuring the Export-Import Bank to give a bribe-payor specific financial

assistance (Jefferson, 674 F.3d at 342). Those differences made it essential that

this district courtlike Judge Huvelle in Ringinstruct the jury about the

distinction between miscellaneous customary actions and ones that use official

powers in support of [] advocacy. Urciuoli, 513 F.3d at 296. Yet this district

court refused to include any limits in its instruction. For that reason alone, it is

plainly debatable whether these limitless instructions were correct.

B. In any event, the district courts instructions differed fromJeffersonin

multiple ways. The only similarity is that the district court quoted the definition

from 201(a)(3), and stated it includes those actions that have been clearly

established by settled practice as part of a public officials position, even if the

action was not taken pursuant to responsibilities explicitly assigned by law.

Tr.6102:23-6103:2. The district court then added two entirely-new instructions:



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McDonnell Jefferson

And a public official need not have actual

or final authority over the end resultsought 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 endsought by the bribe payor. Tr.6103:5-10.

Moreover, an act on a particular

question or matter may still beofficial even if the public official did

not have authority to make a final

decision or take binding action on

the issue. Jefferson Tr.58:8-11, Ex.D.

In addition, official action can include

actions taken in furtherance of longer-termgoals, and an official action is no lessofficial because it is one in a series of

steps to exercise influence or achieve anend. Tr.6103:10-14.

None.

First, the court made official action turn on what the bribe-payor

reasonably believes. No authority suggests that whether an action is officialan

objectiveelementdepends on the bribe-payorssubjectivebeliefs. The court also

instructed that actions are official if the bribe-payor believes they exert

influence over a means to an end. That collides directly with the

instructions in Ring, which explained sharing information with the lobbyist or

helping to develop a lobbying strategy does not constitute an official act, Bond

Mot. Ex. E at 39even though such practices plainly exert influence over a

means to an end.

The Government claims this instruction flows from cases holding that



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fulfillment of the quid pro quo is not an element of the offense. Opp.24. Wrong

again. That entirely-separate principle has nothing to do with defining official

action. This instruction actually appears to have been lifted from instructions

defining under color of official right for the Hobbs Act,see, e.g.,United States v.

Bencivengo, 749 F.3d 205, 212-13 (3d Cir. 2014), an element that goes to the

bribe-payors motivations but has nothing to do with whether actions are official,

see, e.g.,United States v. Mazzei, 521 F.2d 639, 643 (3d Cir. 1975). The notion

that non-official actions becomeofficial based on the secret beliefs of a witness

the Government transactionally immunized for multiple unrelated felonies is

absurd.

Second, the district court gave the novel instruction that official action can

include actions taken in furtherance of longer-term goals. Virtually anything

could be in furtherance of some goal. Photo-ops, public appearances,

recommending a lobbyistall are commonplace actions that further[] a donors

longer-term goals. But they are not official acts.

Finally, the court charged that an official action is no less official because it

is one in a series of steps to exercise influence orachieve an end. Tr.6103:12-14

(emphasis added). This unprecedented instruction presents a close question for

at least four reasons. (1) It defines official action circularly, presupposing that

the action is official. (2) It instructs that actions becomeofficial if they are



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steps toward an actual official act, regardless of whether the actions

themselves constitute official acts. (3) It instructs that actions are official even if

they do notattempt to influence an end, but are merely steps to achieve an

end, which includes virtually everything. (4) It instructs that actions are official

if the jury decides they were steps to exercise influence. But practically

everything an official doesattending a donors birthday party, smiling for the

cameras, wearing a power tieare steps to exercise influence. It would be

ridiculous to claim those are official acts, yet all are under this instruction.

The Government argues these latter two instructions flow from Jeffersons

holding that the Government need not link every payment with every official act.

Opp.24 (citing 674 F.3d at 359). But even if these elastic instructions accurately

paraphrased Jeffersonwhich they do notthe passage the Government cites

discusses a completely different element: the quid pro quo requirement. See

Jefferson, 674 F.3d at 358 (The instruction at the center of this challenge relates

to the quid pro quo element.). Defending the district courts definition of

official action by invoking this Courts explanation of a different element is like

saying the official act instruction was sound because it was based on the well-

established definition of corrupt intent.

The district courts instructionswhich Mr. McDonnell repeatedly

challengedwere unprecedented. If adopted, virtually every elected official in



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America would be at perpetual risk of prosecution for engaging in routine political

conduct. The instructions thus present, at a minimum, a substantial question about

which reasonable jurists could disagree.

III.

Pretrial Publicity Presents A Third Close Question.

There is also a close question whether the district court conducted

sufficient voir dire on pretrial publicity. This is an issue of first impression in this

Circuit post-Skilling v. United States, 561 U.S. 358 (2010), which held that its

district courts voir dire sufficed because it (1) asked in a questionnaire whether

jurors have any opinion about the guilt or innocence of [the defendant] and

whether any opinion you may have formed ... [would] prevent you from

impartially considering the evidence, id.at 371 n.4; and (2) individuallyexamined

allprospective jurors in-court about exposure to pretrial publicity, allowing both

sides to ask follow-up questions, id.at 373-74, 389. (Despite that, there wasstill a

vigorous dissent. Id. at 426 (Sotomayor, J. dissenting).) Here, the district court

refused to do these things, despite specific requests by Mr. McDonnell. It instead

(1) asked in a questionnaire only whether jurors had expressed an opinion to

someone else, rather than if they had formed one, see Mot. at 20 n.13; and (2) in

court, twicedenied requests from both sides for individual voir dire of jurors who

admitted reading or hearing about the case, seeTr.138:7-9 (Im not going to do

what you suggest.); Tr.139:19-20 (Im not asking these questions.).



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The Governments assertion that the defense had the opportunity to ask

follow-up questions based solely on exposure to pretrial publicity,seeGovt Resp.

at 30-31, is patently false. The defense made clear that its position is that if

somebody is exposed to pretrial publicity, they have to be individually voir dired,

and I have a list of questions Id like to give to the Court that I think they should be

asked. Tr.139:7-11. The trial court refused to pose individual questions, instead

asking potential jurors standing 100+ feet from the bench en masse to sit if they

could be impartial. Tr.139-41. That was it. The defense again explained that

without further inquiry, it could not identify jurors for further questioning based

solely on exposure to pretrial publicity. Tr.141:20-25.

The district court thus consistently rejected requests for individual voir dire.

The significant differences between voir dire here and Skilling pose a third

substantial question.

CONCLUSION

The Governments interest in denial of bond is minimal. If Mr.

McDonnells convictions are upheld, he will serve his two-year sentence. His

interest in remaining free until the appellate courts resolve these issues, however, is

impossible to overstate. Mr. McDonnell vigorously maintains his innocence and is

entitled to know whether he actually broke the law before he serves his entire

sentence. He respectfully requests bond pending appeal.



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Dated: January 25, 2015 Respectfully submitted,

/s/ Noel J. Francisco

Henry W. AsbillNoel J. Francisco

Charlotte H. TaylorJames M. Burnham

JONES DAY

51 Louisiana Avenue, N.W.Washington, D.C. 20001


John L. Brownlee (VSB No. 37358)

HOLLAND & KNIGHT LLP800 17th Street, N.W.

Suite 1100Washington, D.C. 20006


Counsel for Robert F. McDonnell



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CERTIFICATE OF COMPLIANCE

I certify that this reply brief contains no more than 3,750 words, specifically

3,750 words, as counted by Microsoft Word 2010, and uses 14-point Times New

Roman font.


Noel J. Francisco


CERTIFICATE OF SERVICE

I certify that on January 25, 2015, the foregoing Reply in Support of Mr.

McDonnells Motion for Release Pending Appeal was served on counsel of record

for all parties through the CM/ECF system.

Dated: January 25, 2015


Noel J. Francisco



mcdonnell appellate brief for bond pending appeal

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