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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. Brownlee
HOLLAND & KNIGHT LLP
800 17th Street N.W.
Suite 1100
Washington, DC 20006
Telephone: (202) 828-1854
Facsimile: (202) 955-5564

Noel J. Francisco
Counsel of Record
Henry W. Asbill
Charlotte H. Taylor
James M. Burnham
JONES DAY
51 Louisiana Avenue N.W.
Washington, DC 20001
Telephone: (202) 879-3939
Facsimile: (202) 626-1700
njfrancisco@jonesday.com
Counsel for Defendant-Appellant
Robert F. McDonnell

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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 do not 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 different elements of the crime into 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
The Washington 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's
not promising you that the Governor is going to help you, right?
A: No.
Q: And she never tells you at this meeting, I'll get Bob to 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.

The Governments invocation of the pro/con list is particularly egregious

because the person who created it never interacted with anyone from the
McDonnell Administration. Tr.2772. She based her inference of political
pressure 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 suggesting
that 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, 478283.) Mr. McDonnell obviously did not break federal law by failing to overdisclose under state law. 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
2

Nor must officials list gifts from spouses. The Government misleadingly
refers to the Rolex watch that Williams bought him, Opp.13, but the evidence
showed 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-yearand-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 find
that Mr. McDonnell lied. See Sent.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 the
conviction. 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 the
First 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
4

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

United States v. Ring supports Mr. 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. Rosen considered a different issue, but made clear that
official actions are things like voting in a certain manner or supporting
grants 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 would still 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 actually held 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 actions just 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 that Rabbitt 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. Urciuoli relied directly 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.
McDonnells point.

But the courts distinction proves Mr.

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 29597, 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 any of that terms basic limits. It is wrong because the district courts
instruction was not identicalor even nearly identicalto Jefferson. Instead, at
the Governments urging, the district court altered and expanded the Jefferson
instruction in critical ways.
A.
irrelevant.

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

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 from Jefferson in

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 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. Tr.6103:5-10.

Moreover, an act on a particular

question or matter may still be
official 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-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. 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
objective elementdepends on the bribe-payors subjective beliefs. 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 become official 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 or achieve 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 become official 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 not attempt 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 wellestablished 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) individually examined
all prospective jurors in-court about exposure to pretrial publicity, allowing both
sides to ask follow-up questions, id. at 373-74, 389. (Despite that, there was still 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, twice denied requests from both sides for individual voir dire of jurors who
admitted reading or hearing about the case, see Tr.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, see Govt 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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Respectfully submitted,
/s/ Noel J. Francisco
Henry W. Asbill
Noel J. Francisco
Charlotte H. Taylor
James M. Burnham
JONES DAY
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
Telephone: (202) 879-3939
Facsimile: (202) 626-1700
John L. Brownlee (VSB No. 37358)
HOLLAND & KNIGHT LLP
800 17th Street, N.W.
Suite 1100
Washington, D.C. 20006
Telephone: (202) 828-1854
Facsimile: (202) 955-5564
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.

/s/ Noel J. Francisco

Noel J. Francisco
Counsel for Robert F. McDonnell

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

/s/ Noel J. Francisco
Noel J. Francisco
Counsel for Robert F. McDonnell