For the Defense - Volume 1, Issue 3 - 2016 - 33

McDonnell and his wife, Maureen McDonnell, on bribery charges for having accepted "otherwise lawful gifts and loans" from Jonnie R. Williams, Sr., the CEO of a Virginia-based public company, Star Scientific ("Star"), in exchange for "performing official actions on an as-needed basis, as opportunities arose, to legitimize, promote, and obtain research studies for Star's products."5 McDonnell was charged with one count of conspiracy to commit honest services fraud, three counts of honest services fraud, one count of conspiracy to commit Hobbs Act extortion, six counts of Hobbs Act extortion, and two counts of making a false statement.6 The government's contention in the Indictment and at trial was that McDonnell took numerous "payments, loans, gifts, and other things of value" from Williams in exchange for performing five "official acts," which were designed to advance the business interests of Williams.7 Specifically, the government contended that McDonnell took five "official acts" on Williams' behalf: 1) inviting Williams to a cocktail reception for healthcare leaders; 2) emailing his chief counsel and asking him to "see me" about Star's research studies (McDonnell's chief counsel, however, never actually followed up on this request to meet); 3) suggesting that two of his subordinates meet with Star about a product that McDonnell noted "might be good for state employees" (the subordinates, however, did not take the suggestion and never met with Star); 4) asking a subordinate to send a staffer to meet with Williams (the staffer, however, decided not to meet with Williams); and 5) appearing at a lunch paid for by his PAC at the Governor's Mansion, at which Williams presented grant money from Star to state university researchers, which was to be used to prepare research proposals to study a Star Product (no research proposals were ever submitted to Star, however, and McDonnell's administration never contacted the researchers or the universities about the proposals).8 According to McDonnell, these seemingly innocuous acts could not constitute "official acts" as a matter of law because he did not take, or pressure anyone to take, any action on any governmental matter.9 The district court, however, refused McDonnell's request for a jury instruction that "merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, 'official acts,'" and that an "official act," by definition, requires conduct that was intended to or actually did influence a specific government decision.10 Instead, the district court's jury instructions defined an "official act" as a "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."11 The district court added that a "public official need not have actual authority 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."12 The jury ultimately found McDonnell guilty of all eleven counts of corruption and not guilty of two counts of making a false statement. McDonnell was sentenced to twenty-four months of imprisonment.13 McDonnell appealed his conviction to the Court of Appeals for the Fourth Circuit, where he argued, among other things, that the trial court misstated the law in its jury instructions. The Fourth Circuit affirmed the trial court's holding, rejecting McDonnell's contention that the trial court's definition of "official action" was "overbroad to the point that it would seem to encompass virtually any action a public official may take while in office."14 Relying on the United States Supreme Court's holding in United States v. Birdsall, 233 U.S. 223 (1914), the Fourth Circuit stated that although the term "official act" does not encompass every act that a public official performs as a matter of custom, the term "may include acts that a public servant "customarily performs, even if the act falls outside the formal legislative process."15 The Fourth Circuit also declined to take issue with the trial court's instruction to the jury that an 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."16 The court observed that the crime of bribery is completed upon the solicitation or acceptance of a bribe, regardless of whether any Vol. 1, Issue 3 | For The Defense 33

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016