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
Contents
For the Defense - Volume 1, Issue 3 - 2016 - 1
For the Defense - Volume 1, Issue 3 - 2016 - 2
For the Defense - Volume 1, Issue 3 - 2016 - Contents
For the Defense - Volume 1, Issue 3 - 2016 - 4
For the Defense - Volume 1, Issue 3 - 2016 - 5
For the Defense - Volume 1, Issue 3 - 2016 - 6
For the Defense - Volume 1, Issue 3 - 2016 - 7
For the Defense - Volume 1, Issue 3 - 2016 - 8
For the Defense - Volume 1, Issue 3 - 2016 - 9
For the Defense - Volume 1, Issue 3 - 2016 - 10
For the Defense - Volume 1, Issue 3 - 2016 - 11
For the Defense - Volume 1, Issue 3 - 2016 - 12
For the Defense - Volume 1, Issue 3 - 2016 - 13
For the Defense - Volume 1, Issue 3 - 2016 - 14
For the Defense - Volume 1, Issue 3 - 2016 - 15
For the Defense - Volume 1, Issue 3 - 2016 - 16
For the Defense - Volume 1, Issue 3 - 2016 - 17
For the Defense - Volume 1, Issue 3 - 2016 - 18
For the Defense - Volume 1, Issue 3 - 2016 - 19
For the Defense - Volume 1, Issue 3 - 2016 - 20
For the Defense - Volume 1, Issue 3 - 2016 - 21
For the Defense - Volume 1, Issue 3 - 2016 - 22
For the Defense - Volume 1, Issue 3 - 2016 - 23
For the Defense - Volume 1, Issue 3 - 2016 - 24
For the Defense - Volume 1, Issue 3 - 2016 - 25
For the Defense - Volume 1, Issue 3 - 2016 - 26
For the Defense - Volume 1, Issue 3 - 2016 - 27
For the Defense - Volume 1, Issue 3 - 2016 - 28
For the Defense - Volume 1, Issue 3 - 2016 - 29
For the Defense - Volume 1, Issue 3 - 2016 - 30
For the Defense - Volume 1, Issue 3 - 2016 - 31
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For the Defense - Volume 1, Issue 3 - 2016 - 33
For the Defense - Volume 1, Issue 3 - 2016 - 34
For the Defense - Volume 1, Issue 3 - 2016 - 35
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For the Defense - Volume 1, Issue 3 - 2016 - 43
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For the Defense - Volume 1, Issue 3 - 2016 - 49
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For the Defense - Volume 1, Issue 3 - 2016 - 78
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